Myers agt. Uptegrove et al.

343), "there was no delivery to the sub-vendee; and the rule is clear that a second vendee who neglects to take either actual or constructive possession is in the same situation as the first vendee under whom he claims. He gets the title defeasible on non-payment of the price by the first vendee."

The question which then arises is, whether the acceptance of Fitzpatrick & Co.'s note, payable at a future day, divested the lien?

There are cases holding that where a future time of payment is fixed the special agreement is inconsistent with the right of lien and destroys it (Blake agt. Nicholson, 3 Maule & S., 168; Chase agt. Witmore, 5 id., 306; Crawford agt. Houfray, 4 B. & Ald., 50; Burdict agt. Murray, 3 Vt, 302; Trust agt. Pierson. 1 Hilt., 293; Dunham agt. Pettee, 1 Daly, 112; Fieldings agt, Mills, 2 Bosw., 489).

The only future time of payment fixed in this case was that which the law implies from the acceptance of Fitzpatrick & Co.'s note, payable at a future day (the lien being in full force at the time of such acceptance), and this is subject to the qualification that if afterwards insolvency happens, and the bill is dishonored, the party exercises a right analogous to that of stoppage in transitu, which may be enforced by the vendor who has not parted with his property by retaining and refusing to deliver it (Benjamin on Sales, sec. 773); for a vendor may refuse to deliver goods wherever the right to stop them in transitu exists (Craven agt. Ryder, 6 Taunt., 434; Stiles agt. Howland, 32 N. Y., 309; Cross agt. O'Donnell, 44 id., 665).

The case at bar is, therefore, analogous to that of a vendor who has sold goods and not parted with possession. In that event the vendor has a common law lien for the price, and if he has sold on credit he has not destroyed his lien, but waived. it upon the implied condition that the vendee shall keep his credit good, and if, pending the term of credit, the vendee becomes insolvent, and the goods remain in the actual possession of the vendor, the vendor's lien revives, even though the title. and right of possession may have passed to the vendee (Ham-

Myers agt. Uptegrove et al.

burger agt. Rodman, 9 Daly, 93). I find, as matter of fact, that Fitzpatrick & Co. were insolvent at the time they gave their note, and that such insolvency continued up to the time of trial. Under such circumstances, the note which they gave to the defendants did not pay the pre-existing debt represented by their lien (Noel agt. Murray, 13 N. Y., 167; Gibson agt. Tohey, 46 id., 640; Ward agt. Evans, 2 Lord Raym., 930; Wehrlin agt. Schwartz, 1 City Ct., 101).

In Roberts agt. Fisher (43 N. Y., 159), the court said: "Upon broad principles of justice, it would seem that a man should not be allowed to pay a debt with worthless paper, though both persons supposed it to be good." On this principle, payment in bills of an insolvent bank, supposed to be good, is not a satisfaction of the debt (Ontario Bank agt. Lightbody, is Wend., 101; Thomas agt. Todd, 6 Hill, 340).

A promissory note is merely a promise to pay, and where a debt is conceded to be owing, it should not be regarded in law or in morals as paid by a broken promise, unless prevailing equities are so strong that substantial justice requires a departure from sound principles of legal policy.

The defendants never relinquished possession of the property on which they bestowed their labor, and have always maintained and asserted their right of lien, which has not been extinguished by the unperformed promise of their debtors.

The defendants, as indorsers, were obliged to take up the dishonored note, and its surrender at the trial, under the circumstances, was timely (Nichols agt. Michael, 23 N. Y., 272, 273; King agt. Fitch, 1 Keyes, 450).

The logs were sawed under one contract, though on different days, and the lien for compensation extended to every portion of them. The delivery of part did not defeat the lien upon the remainder for the entire contract price (Morgan agt. Congdon, 4 N. Y., 552; Story on Contracts, secs. 742, 797; Schmidt agt Blood, 9 Wend., 268; Buckley agt. Furniss, 17 id., 504; Partridge agt. Dartmouth College, 5 N. H., 286; Benjamin on Sales, sec. 806).

Webster agt. Sawens.

The equities are all with the defendants, and upon the entire case I find in their favor.

Judgment accordingly, with costs.

SUPREME COURT.

HORACE WEBSTER and another agt. WILLIS SAWENS and another.

Supplementary proceedings--Sufficiency of the affidavit to warrant the order to appear and answer.

Where the affidavit upon which an order for a debtor to appear and be examined in supplementary proceedings was entitled in the supreme court, giving the title to the action and stating that “ judgment was rendered and perfected in this action," &c.:

Held, that this is in substance a statement that judgment was recovered in the supreme court.

The affidavit stated that the said judgment was docketed and the judgment roll filed in the office of the clerk of the county of New York on the 14th day of January, 1886, and a transcript filed and duly docketed in the office of the clerk of Oneida county on the 15th day of January, 1886, and that an execution against the property of the defendants was on that 15th day of January, 1886, duly issued on said judgment and delivered to the sheriff of Oneida county, where the defendants reside.

Held, that upon this state of the case it will be presumed as between the parties, that the execution was issued after the filing of the transcript. Held, further, that there being a sufficient allegation of the recovery of the judgment in the supreme court, then the allegation that the execution was duly issued on said judgment is in substance an allegation that the execution was issued out of a court of record.

Oneida Special Term, February, 1886.

MOTION by defendants to vacate supplementary proceedings by reason of defects in the affidavit upon which the order to appear and answer was made. The following is the affidavit:

COUNTY OF NEIDA, ss.:

William Townsend, being sworn, says, that he is the attorney

Webster agt. Sawens.

for plaintiff and duly authorized to institute these proceedings; that judgment was rendered and perfected in this action in favor of Horace Webster and Charles W. Lawrence, plaintiffs, against Willis Sawens, Gilbert S. Sawens and Edwin S. Anderson (the latter not summoned), defendants, on the 14th day of January, 1886, for $160.03 damages, and $21.26 costs, upon the personal service of the summons upon defendants, Willis Sawens and Gilbert S. Sawens, and the said judgment was docketed, and the judgment roll therein filed in the office of the clerk of the county of New York on that day; that a transcript of the original docket of said judgment was filed, and said judgment duly docketed in the office of the clerk of the county of Oneida on the 15th day of January, 1886; that an execution against the property of the said Willis Sawens, Gilbert S. Sawens and Edwin S. Anderson was on the 15th day of January, 1886, duly issued upon said judgment, and delivered to the sheriff of the county of Oneida where the said defendants, Willis Sawens and Gilbert S. Sawens, then resided and yet reside and have a place for the regular transaction of business in person, directing said sheriff to levy upon the joint property of all the defendants and upon the separate property of the defendants served with summons, and that the said sheriff has duly returned the said execution wholly unsatisfied to the New York county clerk's office where the judgment roll in this action is filed; that such return was made within ten years; that the said judgment remains wholly unpaid and unsatisfied; that no previous application has been made for the order asked hereon.

WILLIAM TOWNSEND.

Subscribed and sworn to before me,

this 16th day of January, 1886.

JAMES A. LONG,

Notary Public, Oneida County, N. Y.

The grounds upon which motion is made to vacate is as fol follows:

Webster agt. Sawens.

First. That the affidavit does not sufficiently describe the judgment, in that it does not show in what court the judgment was recovered.

Second. That the affidavit does not show that a transcript of the judgment was filed before the execution was issued and that it is not sufficient for them to state that the execution was issued the same day the transcript was filed.

Third. That the affidavit does not show that the execution was issued out of a court of record.

Fourth. It appears that the execution was issued on the 15th of January, 1886, and the order herein granted January 16th, and it does not appear that any sufficient effort was made to collect the debt by execution.

Fifth. That the order does not show before what judge further proceedings are to be had.

Sixth. The affidavit does not show in what county the judg ment was recovered.

William A. Matteson, for motion.

William Townsend, opposed.

MERWIN, J.—It is claimed that the affidavit does not show in what court the judgment was recovered, or that a transcript was filed in Oneida county before the execution was issued, or that the execution was issued out of a court of record.

The affidavit is entitled in the supreme court, and gives the title of the action, and states that "judgment was rendered and perfected in this action," &c.

This is in substance a statement that judgment was recovered in the supreme court.

The affidavit states that the said judgment was docketed and the judgment roll filed in the office of the clerk of the county of New York on the 14th of January, 1886, and a transcript filed and duly docketed in the office of the clerk of Oneida county on the 15th of January, 1886, and that an execution against