The People on rel. Eagle a. Keyser.

BAYLEY, J., said, in Barton a. Williams (5 Barn. & Ald., 395), "There may be cases in which the indivisible nature of the subject-matter of the tenancy in common may raise an implied authority in one to sell the whole." A mortgage is indivisible, and though payable to two persons jointly, the right to receive or recover the money due upon it is single. This right is not divided by the death of one of the mortgagees. Hence the death of Maycock did not affect the right of the surviving mortgagee to keep the mortgage in question and receive the money due on it, and satisfy it.

It is laid down in Graham's Practice, that "on the death of the party with whom the contract was made, if the covenant or promise be to the deceased and another jointly, the action must be brought by the survivor, or his representatives, without joining the representatives of the deceased." (Graham's Pr., 2 ed., 90; see, also, Voorhies a. Childs, 17 N. Y., 354; Cow. Tr., 2 ed., vol. 1, p. 553; Anderson a. Martindale, 1 East., 497; 4 Dall., 359). The Supreme Court of Maine held, in Williams a. Hilton (35 Maine, 547), that "a writ upon a mortgage to obtain a foreclosure may be brought and maintained by the surviving mortgagee." But it has been held in Massachusetts, if a mortgage be given to two persons to secure their several demands, and such demands and their different amounts are specified in the mortgage, each has a right to enforce his claim under the mortgage in form adapted to his case, and that the surviving mortgagee cannot maintain an action on the mortgage to enforce payment of the debt due to the deceased mortgagee. (Burnett a. Pratt, 22 Pick., 556.) That case was correctly decided, because the mortgage itself divided the money between the mortgagees, so the mortgagor knew from the mortgage how much money belonged to each mortgagee.

But if it should be conceded that our Code now requires the representatives of the deceased mortgagee to join with the survivor in an action for the foreclosure of a mortgage taken by the deceased and the survivor, in their joint names as tenants in common, such requirement would not take away the common-law right of the survivor to receive the money due upon the mortgage when tendered to him, and satisfy the mortgage by a proper instrument in writing, and thus compel the representatives of the deceased mortgagee to look to him for the

The People on rel. Eagle a. Keyser.

money, if it or any portion of it belonged to such mortgagee. If the Code required the representatives of a deceased partner to join with the survivor in bringing actions to recover debts due the copartnership, the survivor would still retain his common-law rights to receive payment of such debts, and completely discharge them by receipts or certificates.

It seems to me, there can be no doubt that the payment of the mortgage to the surviving mortgagee discharged the mortgage, so no action could be maintained on it by the representatives of the deceased mortgagee, or by them and the survivor, or by either.

The only remaining question is, whether the statute respecting the cancellation of the records of mortgages requires that the satisfaction certificate shall be signed and acknowledged by the representatives of the deceased mortgagee as well as the survivor, to authorize the register to cancel the mortgage upon the record.

The statute is, that "any mortgage that has been registered or recorded, or that may hereafter be recorded, shall be discharged upon the record thereof, by the officer in whose custody it shall be whenever there shall be presented to him a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged," &c. (1 Rev. Stat., 761, § 28.) This statute does not mean that all the mortgagees or their personal representatives, must execute and acknowledge the satisfaction certificate to authorize the officer in whose custody the record of the mortgage shall be to record it, and discharge the mortgage upon the record, provided a satisfaction certificate, signed and acknowledged by one of the mortgagees, discharges the mortgagor from all claim of each and every of the mortgagees and their representatives upon the mortgage. (See People a. Miner, 37 Barb., 466; S. C., 23 How. Pr., 223; Stuyvesant a. Hall, 2 Barb. Ch., 151.) The statute respecting cancelling dockets of judgments is, that the clerk may cancel and discharge them, "upon filing with him an acknowledgment of satisfaction, signed by the party in whose favor such judgment was obtained, or by his executors or administrators, duly authenticated," &c. (2 Rev. Stat., 362, § 22.) But whoever heard it was necessary that all the parties in whose favor a joint judgment is recovered, must sign and acknowledge a sat

Edsall a. Brooks.

isfaction certificate to authorize the clerk to cancel and discharge the docket? The signing and acknowledging of the proper satisfaction certificate by one of the parties who obtained such a judgment, has always been considered sufficient to justify the clerk in cancelling and discharging the docket of it. And it is not at all probable that everybody has been mistaken respecting the legality of this mode of satisfying judg ments. I am not prepared to admit there has been an error touching it; for I think there has not been any.

For these reasons, I am of the opinion the register should have received and recorded the satisfaction certificate, showing the mortgage had been paid, and duly discharged the mortgage upon the record thereof.

It follows, that the portion of the order of the general term of the Supreme Court appealed from, should be reversed, and a mandamus ordered to be issued, as moved for by the relator. I think no costs should be awarded to either party.

EDSALL a. BROOKS.

New York Superior Court; General Term, March, 1864.

LIBEL.-REPORT OF JUDICIAL PROCEEDINGS.-PRIVILEGED COM

MUNICATION.

Both at the common law and under the statute (Laws of 1854, 314, ch. 130), a fair report of a public official proceeding is a privileged communication, and is libellous only if there be proof of actual malice.

To charge a public officer with "black-mailing," and to assert that he has been dismissed for that cause, is calculated to degrade and bring him into disrepute, resulting in injury to his character with the public, aud is libellous. The defendants published in their newspaper an account of the proceedings before the commissioners of police against the plaintiff, who was a policeman, upon charges that he had improperly received money for services rendered in the performance of his duty, in which proceedings the plaintiff was dismissed by the commissioners, not so much for having received the reward, but for omitting to give notice of it to the commissioners. The defendants prefixed to their report of the proceeding the following title and statement: "BLACKMAILING BY A POLICEMAN.-Isaac W. Edsall, of the twenty-sixth precinct, City

Edsall a. Brooks.

Hall police, has been dismissed from the police department by the commissioners, on charges of black-mail preferred against him by citizens in three distinct cases."

Held, that these comments were not privileged, but were unfair and untrue deductions from the facts; and for their publication the defendants were liable.

This action was to recover damages for a libel upon the plaintiff, published in the New York Evening Express, of which the defendants are the editors and proprietors.

The alleged libel is in the following words:

"Black-mailing by a Policeman.-Isaac W. Edsall, of the twenty-sixth precinct, City Hall police, has been dismissed from the police department by the commissioners, on charges of black-mail preferred against him by citizens in three distinct cases."

The answer of the defendants, after admitting the publication of the alleged libel, sets out the entire article, of which the alleged libel forms a part only. The article alleges that "the first charge is by Cornelius W. Gibson, of Brighton, C. W., who alleges that on the 10th day of April he was in this city, intending to go to British Columbia by the California steamer, and he was induced to go into a Peter Funk auction store, in Cortlandt-street, and there purchased a watch that was warranted gold for $120. The watch turned out to be worthless; and, after some very sharp practices by the Funks, the watch being resold, the victim bought an equally worthless one for $75, but succeeded in getting $25 back, for which he had to pay a commission of $6, thus losing $56. The following Monday, the 4th, he applied to the police, and Edsall was sent to work up the case. He brought up the parties before the Mayor, and they were discharged on refunding the money. Gibson then gave Edsall $5 for his trouble.

"Amos C. Yeomans, also a Canadian, made an affidavit that he was caught in the trap by the Peter Funks, and cheated out of $59 by the same process as his friend Gibson, and at the same place; that on applying to the police, Edsall was detailed to attend to the case, and succeeded in recovering the money for him, and he, Yeomans, made him a present of $4.

"In answer to these charges the officer stated on his trial that after he had recovered the money for the parties they pressed him to take the money as a present, when he said that police

Edsall a. Brooks.

men were not allowed to take any gratuity without permission from the board of commissioners; they still pressed him, and he took the money conditionally, intending to deposit it with the commissioners preparatory to receiving their permission. He was very busy all that day, and could not call on the commissioners. He also stated that on the same afternoon Sergeant Cleary and officer Doyle, of the same precinct, called on Gibson and Yeomans and induced them to make the above statement before the chief clerk.

"Commissioner Acton stated that on the 18th, two days after the complaint was made, and after Edsall had had notice of trial, the $9 was deposited by him with the commissioners.

"There was another affidavit sworn to by John W. Allen, who had been cheated on the 27th of March last by the Peter Funks out of $50. Edsall recovered the money for him, and he paid him $5 for his trouble. On being shown this affidavit, Edsall became quite indignant, and said: 'I deny that in toto. I never had any thing to do with Mr. Allen's case, to my recollection, and I deny taking any money from Mr. Allen. These were the only cases where I have had money tendered me (referring to the cases of Yeomans and Gibson). I admit I received the money in these cases to appropriate it in accordance with the rules of the department.'

"On the book of Captain Silvey, of the twenty-sixth precinct, appears the following entry under date of March 27th: "Officer Edsall recovered $48 from No. 1 Park-row, for John W. Allen, of Portland, Me.; settled by the Mayor."" This seemed conclusive to the commissioners, and Edsall was immediately discharged from the department.

"Officer John Cronk, of the Broadway squad, has been selected by Mayor Opdyke in the place of Edsall, and has been transferred to the Mayor's office."

The answer further alleges that charges were preferred against the plaintiff before the said commissioners, a trial had, and the plaintiff was, by the judgment or decision of the said police commissioners, dismissed from the said department; and that the publication was and is, in all respects, a just, fair, and impartial account or statement of the charges, trial, and dismissal of the plaintiff from the police department, by a legally constituted public judicial tribunal; and that the printing and pub