O'Dea agt. O'Dea

her from the imputation of bigamy. If the status of the wife was changed, the marriage was not in force; and, in view of these conflicting conditions, the learned judge recognizes the hardship of being "a husband in name and under disabilities or ties in one jurisdiction, and single and marriageable in another." If the law is to be so rendered, and this defendant put in that position, it will still remain that the plaintiff's case was not brought within the plain language of the statute. It certainly cannot be said that the former husband, as to whom, even under the doctrine of the Baker Case, the dissolution of marriage is absolute, can in any degree be held united to the defendant by the tie which such a relation implies. I think the decree put an end to the contract. But if it had only a partial operation, the marriage cannot be said to be in force; and that the statute requires as a condition of jurisdiction.

One other question remains: Was the evidence on which the referee put his decision competent? Public policy forbids that a marriage should be dissolved either by the mere consent of the parties thereto, or by a judicial proceeding which has no other foundation than their admissions. Were it otherwise, the morals of the community would be easily corrupted, and the forms of law made effectual in the profanation of marriage. Therefore the Code, which has changed the common-rule as to the competency of witnesses in civil actions, forbids husband or wife testifying, in an action for divorce on the ground of adultery, to any matter save their marriage. What cannot be done by their testimony should not be done indirectly by any act of theirs, neither by admission in pleading, nor by stipulation of counsel. Here we find no evidence of the fact of the former marriage. The pleadings, indeed, concede it, and counsel have stipulated that it took place. Neither of these things can have any efficacy, except as they were authorized by the parties; and their admission or statement, however formally expressed, should have no effect when their testimony as witnesses is excluded. Neither will the law permit such a judgment by default, although in other actions the silence of

O'Dea agt. O'Dea.

the defendant is effectual as an admission in favor of the plaintiff. The fact pleaded, and the fact stipulated, is the vital one in the case, and to permit a divorce under such circumstances is practically to concede that a relation in the continuance of which the state has an interest may be dissolved, as it was formed, by the simple agreement of the parties.

I have examined the cases which, as cited by the appellant, seemed to bear upon this question, but find none which requires a different conclusion from the one expressed. In my opinion, therefore, the learned court below did not err under the circumstances of this case, in whatever aspect they may be viewed, in refusing to annul the marriage between the plaintiff and the defendant. They might well hold that the plaintiff's case was not proven, or, if there was irregularity in the proceedings of the court of Ohio, waive it in a spirit of comity, and accredit the judgment, rather than pronounce a relation which for nearly twenty years the parties treated as lawful, to have been adulterous. They might also hold that the judicial proceedings in Ohio were effective, and that the interest of society, and justice to the parties, required that respect should be given them.

I think the order appealed from should be affirmed, and the defendant have judgment absolute, dismissing the complaint. MILLER and FINCH, JJ., concur.

Throop Grain Cleaner Company agt. Smith.

SUPREME COURT.

THE THROOP GRAIN CLEANER COMPANY and HIRAM K. EDWARDS, sheriff of Onondaga county, plaintiff, agt. H. CORDENIO SMITH, defendant.

Contract for the sale of personal property — When the title to a demand passes to the vendor-Attachment-When lien created by levy-Whether a transfer has been effected, a mixed question of fact and law—Check or draft—Assignment-How much must be done to make an effectual assignment of an account-Code of Civil Procedure, sections 677, 678, 679-Aitaching creditor— Action by him to collect the demand attached-He cannot impeach the good faith of the transfer of the demand.

Where an action is brought by an attaching creditor jointly with the sheriff who levied the attachment, against a creditor of the defendant in the attachment, to recover a claim attached, in aid of the attachment, pursuant to sections 677, 678 and 679 of the Code of Civil Procedure, and which is defended upon the ground that the demand was assigned prior to the levy of the attachment, it seems inquiry cannot be made into the question whether or not the transfer was fraudulent as against the attaching creditor.

No lien is created by the levy of an attachment upon a claim, unless the legal title to the demand is in the attachment debtor at the time of the levy.

Where there has been no formal transfer of the title to a demand levied upon under an attachment, it becomes a mixed question of fact and of law whether or not a transfer has been effected.

In such a case, whether or not a present appropriation of a debt or demand has been effected, so as to constitute a legal or an equitable assignment, is a question of intention, to be submitted to the jury, as matter of fact, for their determination, upon the language used by the parties, written or verbal, and the surrounding facts and circumstances.

A check or inland bill of exchange, drawn in the ordinary form, not describing any particular fund or using any words of transfer of the whole or any part of a demand standing to the credit of the drawer, does not operate as an assignment, either legal or equitable, of such demand, to have the effect of an equitable assignment, the draft must be drawn on a particular specified fund or demand.

Where the drawer of a draft for a demand due from the drawee delivers the draft to the payee, accompanied with propositions of sale, which are ac

Throop Grain Cleaner Company agt. Smith.

cepted by the payee, and their minds meet on the terms of the bargain, and the draft is delivered and received as a mode of effecting a transfer of the title of the claim against the drawee, the title would pass, although the drawee refused to accept the draft. But the delivery of the draft alone, without any arrangement relative to a bargain and sale of the demand, or the delivery of the draft, accompanied with propositions of sale, not accepted by the payee, would transfer neither the legal or equitable title to the demand.

A draft made and delivered to the payee for the purpose of transferring the title of a claim due from the drawee, and the payee parts with no value, and relinquishes no rights against the drawer, the draft will not pass the title or affect an equitable assignment of the demand.

A chose in action may be assigned by parol, but to constitute such an assignment, there must be a surrender of all control over the demand by the creditor, and the appropriation of it by the purchaser must be absolute and unqualified.

Where on a proposed sale of a demand no part of the purchase price is paid by the purchaser, an agreement that the price shall be applied to a precedent debt owing by the seller to the buyer, does not amount to a payment of the purchase money as required by the statute of frauds, unless actually applied by giving a receipt or otherwise.

How much must be done to make an effectual assignment of an account, query.

Under a contract for the supply of a quantity of machinery, the purchaser is under no obligation to make any payment until the contract has been fully performed and the whole of the machinery delivered, and until then the purchaser does not become a debtor under the contract.

Fifth Department, General Term, January, 1886.

THIS was a reargument of a motion on the part of the plaintiff, after nonsuit, for a new trial upon case and exceptions, ordered to be heard in the first instance at general term. This action was brought on the 9th day of July, 1881, by authority of an order granted on that day, upon application made therefor, as a provisional remedy, under title 3 of chapter 7 of the Code of Civil Procedure, in aid of an attachment, in the names of the plaintiff in the attachment and the sheriff who executed the attachment, jointly, as plaintiffs, against the defendant, a debtor of the defendant in the attachment, to recover a claim attached in the hands of the defendant, as such debtor, and

Throop Grain Clearer Company agt. Smith.

reduce it to the possession of the sheriff, to answer any judg ment that might be recovered in the attachment suit.

The plaintiff, the Throop Grain Cleaner Company, brought an action on the 6th day of May, 1881, in this court, for Cayuga county, by attachments against one Edward P. Allis (trading and doing business under the name or style of E. P. Allis & Co., at Milwaukee, Wis., his place of residence), as defendant, to recover the sum of $4,000 and interest, due on a contract for the manufacture, by Allis, of certain milling machinery.

This defendant, Smith, who resided in Onondaga county, was indebted to Allis in the sum of $4,100 for certain milling machinery sold and delivered to him by Allis, under the following agreement:

"This indenture, made this 4th day of April, 1881, by and between Edward P. Allis & Co., of Milwaukee, Wis., parties of the first part, and H. C. Smith, comprising the firm of H. C. Smith, of Marcellus, N. Y., party of the second part,

"Witnesseth, that the said party of the first part, in consideration of the sum hereinafter stated, to be paid to them by the party of the second part, at the times and in the manner hereinafter stated, agree to manufacture and furnish, at Milwaukee, Wis., f. o. b. cars, all to be good material and workmanship, the following articles, to wit:

"Three double set of corrugated rolls, in Gray's pat

noiseless frames...

$1,800 00

Two double set of smooth iron rolls, in Gray's pat

noiseless frames..

1,000 00

Four No. 1 Smith purifiers, C. $350, less 25 per

cent.....

Doufour's bolting cloth, 20 per cent disc. price list.

"E. P. Allis & Co. guarantee H. C. Smith that the three double set of corrugated rolls will reduce the wheat and clear