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Mr. Baker that the check had been obtained by the fraud and forgery of Byram, and after an interview, the accounts of which are very contradictory, procured a short delay in the cancellation of the mortgage. The certified check was duly paid on the morning of the 27th, and the bill was subsequently filed to restrain the cancellation of the Plaut mortgage, and to compel repayment by Mrs. Plaut, or to reinstate the Plaut mortgage as an existing security on defendant Thompson's lands prior to the Baker mortgage, and subrogate complainant to its benefit, or for such other relief as complainant may be entitled to. On the hearing the validity of the payment to Mr. Weeks for the defendant Plaut is not contested by complainant, nor is it claimed that Mrs. Plaut can be held liable for the repayment of the money. In view of the settled rules applicable to the case, such claim could have no foundation. Money, although procured by fraud or felony, cannot be followed into the hands of a person who has received it innocently in satisfaction of an existing debt. This rule is based, not upon the ground that the payment of an antecedent debt is a valuable consideration, which will cut off the equities of third parties, but upon rules of public policy relating to money and currency, enforced for the prevention of the confusion and uncertainty which would inevitably result if a creditor who received money in payment of a debt in due course of business, and without notice, was subject to the risk of accounting therefor to a third person, who might be able to show that the money was obtained from him by felony or fraud. Babcock v. Standish, 53 N. J. Eq. 376, 384, 33 Atl. 385; Stephens v. Board (1879) 79 N. Y. 183; Justh v. Bank, 56 N. Y. 478; Hatch v. Bank, 147 N. Y. 184, 191, 192, 41 N. E. 403; Nassau Bank v. National Bank of Newburgh, 159 N. Y. 456, 460, 54 N. E. 66. In Thomson v. Bank [1893] App. Cas. 282, Lord Herschell says (page 287), "It cannot, I think, be questioned that under ordinary circumstances a person, be he banker or other, who takes money from his debtor in discharge of a debt, is not bound to inquire into the manner in which the person so paying the debt acquired the money with which he pays it." Bacon, L. J., in Taylor v. Blakelock, 32 Ch. Div. 560, says (page 570) "that, by the common law of England, payment of an existing debt has always been a payment for a valuable consideration; that the man who has a dept due to him, when he has been paid the debt has converted the right to be paid into the actual possession of the money, and that in taking payment he relinquishes right for the fruition of the right; that in such a case the transaction is completed, and to invalidate that transaction would be to lull creditors into a false security and to unsettle business." Certified checks, when used and accepted as money in payment of debts, must, upon the same grounds of public policy, be treated as payments of money, and entitled to the same protection. Nassau Bank v. Broadway Bank, 54 Barb. 236; Justh v. Bank, supra. And where upon

the payment of the debt there is a transfer, satisfaction, or release by the creditor of an interest in the lands held as security for the debt, he becomes in addition a purchaser for valuable consideration. This character of holder for valuable consideration has been extended to cases where property (other than money) held in trust by a trustee, or purchased by trust funds, has been transferred and accepted in satisfaction of a debt owing by the trustee to persons to whom he was liable under another trust, and who had no notice of the misappropriation. Taylor v. Blakelock (1865) 32 Ch. Div. 560, and cases cited. In the present case, before notice to Mr. Weeks of any fraud in connection with Byram's obtaining the check, the receipt had been indorsed upon the mortgage, with a direction for cancellation, and the mortgage had been delivered to Mr. Baker for the benefit of Mrs. Baker. Having surrendered and discharged her mortgage on the receipt of the check, without notice of any fraud, Mrs. Plaut was a holder for value of the check, and entitled to the payment thereof, and to retain the money, even if a certified check used for the payment of a debt be regarded, not as money, but merely as negotiable paper.

These settled principles in relation to the receipt of money by a creditor in satisfaction of existing debts or obligations are referred to and restated, not because complainant's counsel dispute either their validity or effect so far as Mrs. Plaut is concerned, but because their application for the protection of either Mrs. Baker or Mr. Thompson is disputed, and for the further reason that, in the view which I take of the whole case, the question upon the solution of which the decision of the case depends is whether the payment to Mrs. Plaut by Byram must not, by reason of the peculiar facts in the case, be considered also such a payment or discharge of an existing debt or obligation owing by Byram to Mrs. Baker and Thompson as entitles them to protection of the same character, if they, also, had no notice of the fraud. It is important, therefore, in this view, to consider the basis of the legal rules which protect Mrs. Plaut in retaining the money paid to her. The special feature of the case is that the payment to Mrs. Plaut of her mortgage was the very duty or obligation which both Mrs. Baker and Thompson had previously contracted with Byram that he should perform, and for the performance of which each of them, in advance of the performance, gave valuable consideration,-Thompson, by the mortgage to Mrs. Baker; and Mrs. Baker, by advancing the money for the payment to Byram. Byram's failure to pay the whole of the mortgage at once, and his misappropriation of portion of the money, made him a debtor to Mrs. Baker for the misappropriation of her money, although he was such debtor without her knowledge. When Byram subsequently paid the Plaut mortgage, he discharged not only that mortgage, but also the duty or obliga

tion to pay this mortgage which he contracted with Mrs. Baker upon valuable consideration previously received from her. That the payment by Byram was intended as a discharge of his obligation to Mrs. Baker sufficiently appears from his request to Mr. Weeks to cancel the Plaut mortgage and return it to Mr. Baker after cancellation, and, as between Byram and Mrs. Baker, the debt or obligation due to her from Byram, to pay the Plaut mortgage, was discharged upon Mr. Weeks' receipt of the check as payment, and his indorsement of the mortgage as paid and for cancellation. And this discharge of his debt to Mrs. Baker, although without her knowledge when made, cannot affect, as between Byram and Mrs. Baker, the validity or effect of the payment as a discharge of the debt owing to Mrs. Baker, or the right of Mrs. Baker to treat it as a discharge. This was the rule applied in Nassau Bank v. National Bank of Newburgh (1899) 159 N. Y. 456, 54 N. E. 66. In this case one T. obtained money from a bank upon a check forged by him, in the name of one of its depositors, and the payment was charged to the depositor's account as upon a genuine check. Afterwards T., by forgery, procured from another bank its check, which he deposited in the first bank to the credit of the depositor, not of the bank, thereby replacing, through the medium of the depositor's account, the funds stolen from the first bank, which was ignorant both of the original forgery and of the repayment. Upon a suit brought by the second bank against the first, it was held that the first bank was entitled to retain the check and the money thus procured from the second bank, because it was a payment of the debt in fact due to it, although without its knowledge, and that after this payment the debtor (being the forger) could not reclaim it, and that no interest in the moneys remained in him. The payment or discharge of Byram's previous debt or obligation to Mrs. Baker having in fact occurred by Byram's payment of the Plaut mortgage for the purpose of discharging the obligation to Mrs. Baker as well as to Thompson, she is, as it seems to me, not only a creditor entitled to hold the benefit of payment as made in fact on her existing debt, but also a holder for valuable consideration. The fact that this payment or discharge was made with money fraudulently or feloniously obtained from complainant cannot, as it seems to me, change or disturb the effect of the payment of the money in discharge of a debt, either as to Mrs. Plaut or as to Mrs. Baker, unless at the time of the payment, or, at furthest, at the time of the receipt of the mortgage by Mr. Baker, he, or Mrs. Baker through him, was charged with notice, actual or constructive, of the fraud of Byram. Actual notice of Byram's fraud in procuring the money from the complainant for the payment is claimed, because, at the time of the receipt of the mortgage from Mr. Weeks, Mr. Baker had,

it is said, notice of Byram's misconduct and fraud. The information then received by Mr. Baker, that the Plaut mortgage had just been paid by Mr. Byram, more than a year after he had received the money for that purpose, was notice of Byram's irregular dealing with their money, which might require explanation from him, but it cannot be considered as notice either to Mr. Weeks or to Mr. Baker of a fraud or crime of Byram in procuring the money for the payment from the bank. Nothing had occurred at the time of the payment to Mr. Weeks, or at the time of the delivery and receipt of the Plaut mortgage, to arouse any suspicion that the certified check had been procured by fraud or forgery, so as to put them upon inquiry of the bank, nor did the complainant itself at that time have any such knowledge. I find nothing in the case to charge Mr. Baker with actual notice of Byram's fraud in procuring the check, by reason of any facts which came to his knowledge, or as to which he was put upon inquiry. Constructive notice of Byram's fraud in procuring the money is also claimed by reason of Byram being Mrs. Baker's solicitor, but this contention cannot prevail. Byram was Mrs. Baker's solicitor or agent for the purpose of paying over to Mrs. Plaut, in satisfaction of her mortgage, the money furnished by Mrs. Baker, and was in no respect her solicitor or agent for the purpose of procuring money from other sources for that purpose. The payment made by Byram to Weeks was not of Mrs. Baker's money, as her solicitor, but was of money which was paid and received as his own money; and he paid this money, not as Mrs. Baker's solicitor, but for himself, to discharge his debt to her. Constructive notice to her through her solicitor can only extend to information received by Byram in the course of the transaction in which she employed him as her solicitor, which information the law presumes that the solicitor in the course of the business communicated to his client. It would, as it seems to me, be an unauthorized and unjust extension of the rule in question to charge Mrs. Baker, merely by reason of the employment of a solicitor to pay over her money for a special purpose, with constructive knowledge that the solicitor subsequently misappropriated her money, and afterwards fraudulently procured money from others to pay his debt to her. That Byram intended to repay the money secretly and without her knowledge sufficiently appears from his request to Mr. Weeks to cancel the mortgage and then send it to Mr. Baker.

Upon the whole case, therefore, I conclude that Mrs. Baker and Thompson, not having any notice, actual or constructive, of Byram's fraud in procuring the certified check from complainant, are entitled to the benefit of the payment of the check as money in discharge of the Plaut mortgage, upon two grounds: First, that it was a payment of money made by Byram in discharge of an

existing debt owing by Byram to them, and a payment of money which neither Byram nor the complainant, from whom the money was fraudulently procured, can rescind or revoke; and, second, that this payment of the mortgage being made by Byram upon the consideration of money previously advanced to Byram expressly for that purpose by Mrs. Baker, on Thompson's mortgage, they are holders for valuable consideration of the premises released from the Plaut mortgage, and this mortgage cannot be reinstated as a prior subsisting mortgage, to their detriment.

I

Other questions were raised in the cause, -one as to the negligence of the complainant in allowing Byram's account to be credited with the amount of the forged check without inquiry as to the truth of his statements, and another as to the negligence of Mrs. Baker and Thompson in not employing different solicitors, and in their subsequent conduct in failing to see that 'he Plaut mortgage was paid and canceled of record. find that neither of these claims have been established as matters of fact, and that the negligence of either party in the respect charged is wholly irrelevant to the present case. The complainant's case is based on its equitable right to follow its money procured by fraud and crime, and its negligence or carelessness in parting with its money could not deprive it of its title to the money, or give title to the money to the fraud doer, or to a recipient who did not receive it innocently for a valuable consideration, or as money received in payment of an existing debt. And, on the other hand, defendants' case is based on their right to retain and hold the benefit of a payment made for their benefit and in discharge of a duty owing to them; and their negligence in relying upon Byram, if any existed, was not in any legal sense the cause of complainant's loss. Nor was the complainant's act which was the direct cause of its present loss, viz. the certification of Byram's check, induced by any reliance on any act or omission of the defendants. The case presented is simply one where both complainant and defendants have been defrauded by Byram, a trusted attorney, who has fraudulently obtained money from the complainant, a part of which he has used to repay and restore a previous misappropriation of defendants' money. The bill will be dismissed, with costs.

(64 N. J. L. 658)

STATE v. ABBATTO. (Court of Errors and Appeals of New Jersey. Aug. 9, 1900.)

MURDER-EVIDENCE-INSTRUCTIONS. On the trial of an indictment for murder, held not to be error to permit the state, for the purpose of showing motive, to prove that the prisoner and the wife of the deceased occupied the same room together for two successive nights almost immediately after the murder, nor to receive in evidence a confession which was neither extorted by threats nor obtained

by any direct or implied promise; nor to permit the state to contradict portions of the statement contained in the prisoner's confession. Held further that, on the evidence which had been adduced at the trial, a request that the jury be instructed that they could not convict the prisoner of murder either in the first or second degree was properly refused.

(Syllabus by the Court.)

Error to court of oyer and terminer, Camden county.

Francisco Abbatto was convicted of murder, and brings error. Affirmed.

John J. Crandall, for plaintiff in error. Frank T. Lloyd, for the State.

GUMMERE, J. This writ of error brings up the conviction of the defendant, Francisco Abbatto, of murder in the first degree in the killing of one Genaro De Foe. Several reasons are assigned for setting it aside; some of them based upon rulings of the trial judge on questions relating to the admissibility of evidence, the others relating to the refusal to charge to the jury certain requests submitted on the part of the defendant.

The first assignment of error is to the admission by the court, against the objection of defendant's counsel, of the following question, put by the prosecuting attorney to the wife of De Foe, the murdered man, she being the state's witness: "Did you [referring to witness and the prisoner at the bar] occupy the same room in New York?" The contention of the state on the trial was that the prisoner had willfully, deliberately, and with premeditation taken the life of De Foe, being moved to do so by desire to obtain possession of the latter's wife, and also of certain moneys which he carried about on his person. In support of its contention that illicit love for the murdered man's wife was one of the causes which moved Abbatto to kill him, the state had offered evidence tending to prove, among other things, that shortly before the homicide he had asked her to leave her husband; that, on the morning following it, the prisoner and the witness, with her little child, had left their home near Hammonton (where the prisoner had been a boarder in De Foe's family) for New York, stopping over night in Philadelphia, where they occupied different rooms, and then going on to New York, where they remained two days, returning from thence to Hammonton. The ground upon which counsel contends that the question objected to was not competent is that the state had not, before putting the question, shown that the trip to Philadelphia, and afterwards to New York, was taken on the motion or at the solicitation or request of the defendant; the argument being that the testimony theretofore submitted would not fairly justify the conclusion that the journey was at the instigation of the defendant, rather than of the witness. Conceding this to be so, and assuming that the trip was planned solely by the witness, it seems to us manifest that the question was properly admitted. The attempt of the state was to

show the existence of illicit relations between these two people. That proof of such relations was competent for the purpose of showing motive is not and cannot be successfully denied. If these parties occupied the same bedroom for two nights in succession, that fact, in connection with those already adverted to, would equally tend to the conclusion that meretricious relations existed between them, whether the journey to New York took place at the solicitation of the prisoner or of the witness.

The second and third assignments of error relate to the admission in evidence of a confession of the defendant. A few days after his arrest on the charge of having murdered De Foe, he was taken to the office of the prosecuting attorney, and there subjected to an examination upon matters relating to the alleged crime. As he was an Italian, unable to speak or thoroughly understand the English language, and as the prosecuting attorney was ignorant of Italian, there was present one Amodei, to act as an interpreter between them. The questions and answers were translated by the interpreter, and the examination was taken down in shorthand by a stenographer, written out in English, and then read over to the prisoner, and signed by him. Before offering the confession in evidence, counsel for the state put Amodei upon the witness stand, and, for the purpose of proving that the questions and answers had been accurately translated, asked this question: "Was the statement made by Mr. Jenkins [the prosecuting attorney] to you as interpreter repeated by you as interpreter?" This question was objected to, the reason for such objection being that the paper-i. e. the transcript of the stenographer's notes-must speak for itself. Except for the grave importance of the case, this assignment is so frivolous as not to merit mention, much less consideration. It was not only competent, but necessary, to prove by the oath of the interpreter on the witness stand, that he had truly interpreted between the prosecutor and the prisoner, in order to justify the subsequent admission of the stenographer's transcript of what was said by them at the examination that he reported; and this was so without regard to whether the stenographer's notes did or did not contain a statement that the witness had so interpreted.

Error is also assigned to the admission of the confession itself against the objection of the prisoner, the ground of objection being that the confession was not voluntary. It appears that before anything was said by Abbatto he was informed by the interpreter, at the instance of the prosecuting attorney, that he was charged with the murder of De Foe, and that, knowing he was so charged, he need not say anything without he desired; but that, if he wanted to tell anything about the case, the prosecuting attorney would like to know the truth of the matter. In reply the prisoner expressed his willingness to tell what he knew about the case, and his examination

was then taken. No threat was made, or violence used, for the purpose of extorting any statement from the prisoner, nor was it induced by a promise of any kind, either direct or implied. This being so, the so-called "confession" (the prisoner did not admit by it that he had taken the life of De Foe) was a voluntary one, as defined by this court in the recent case of Roesel v. State, 62 N. J. Law, 216, 41 Atl. 408, and was properly admitted in evidence.

The next assignment of error relates to the admission of testimony offered by the prosecution for the purpose of contradicting a statement made by the prisoner in his confession. There was no error in admitting this evidence. The rule is elementary that if, after the whole statement of the prisoner is given in evidence, the prosecutor can contradict any part of it, he is at liberty to do so; and then the whole testimony is to be left to the jury for their consideration, precisely as in other cases where one part of the evidence is contradictory of another. 1 Greenl. Ev. § 218; Rex v. Jones, 2 Car. & P. 629.

The last two assignments of error are to the refusal of the trial judge to instruct the jury in accordance with the following requests, viz.: First, that the state had failed to make proof before the court and jury that the killing of the deceased, De Foe, was the result of any willfulness, deliberation, and premeditation on the part of the defendant, and that the jury were unauthorized to find the accused guilty of murder in the first degree; second, that the state had not produced before the jury evidence tending to establish that the accused killed the deceased, De Foe, in the commission or the attempted commission of any specific unlawful act against the peace of this state of which the probable consequence was bloodshed, and that the jury were not authorized to find the accused guilty of murder in the second degree. As has already been stated, evidence had been offered on the part of the state tending to show that Abbatto was in love with the wife of De Foe, and that within two weeks before the homicide he had asked her to leave her husband. It had been further shown that on the afternoon of the day on which deceased was killed his wife spent an hour in company with Abbatto in the woods near the house where they lived; that immediately after their separation Abbatto went to a livery stable, and arranged for the hire of a horse and wagon; that about 8 o'clock that same evening the prisoner and the deceased took the horse and wagon, and drove off in the direction of the place where the deceased's body was afterwards found; that later they were seen not far from that place; that the prisoner did not return with the wagon until the next day, and that he returned alone; that portions of the wagon were stained with blood, and that bits of hair were found upon some parts of it. It had also been shown, as hereinbefore recited, that on the day of his return Abbatto went

with the wife and little child of the deceased to Philadelphia, where they remained one night, and afterwards to New York, where they remained over the two following nights, occupying the same bedroom at the latter place. In addition, it had been testified to that several days later the body of De Foe was found hidden in a thicket, about 100 yards back from the public road, with the head severed from the body, the head being subsequently found several hundred yards away; that large quantities of blood were found in the road opposite to where the body was discovered, and that there were upon the ground indications that the body had been dragged from the place where this blood was to the thicket where the body was concealed. There had, moreover, been produced evidence tending to show that the deceased had upon his person, on the day of his death, money to the extent of $70 or more, which he intended to send to Italy, and that this was known to Abbatto; that at the time the latter hired the wagon he had, by his own admission, only $8 or $9, but that on the next day, when he went with the deceased's wife and child to Philadelphia, he had quite a roll of bills in his possession; and that, although the deceased had this consiuerable sum of money upon his person on the day of the homicide, as has been already stated, when his body was afterwards discovered no money was found upon it. No attempt was made on behalf. of the prisoner to discredit this testimony, or to do away with the natural inferences arising from it; no proof being offered upon the part of the defense when the state rested, counsel stating to the court that he had "decided to take the serious responsibility of not producing any testimony at all." If the deceased, De Foe, came to his death at the hands of Abbatto, as the jury has found, it seems almost impossible, in the face of the facts above cited, to resist the conclusion that his death was the result of the willful, deliberate, and premeditated act of the latter, and that the crime was murder in the first degree. Certainly, it cannot be said as a matter of law that these facts will not support a conviction of that offense. That being so, they will equally support a conviction of felonious homicide of any lesser degree. The requests to charge were, therefore, properly refused by the trial court. We find no error in the record, and are of the opinion that the judgment below should in all things be affirmed.

(60 N. J. E. 57)

BOOTH et al. v. KIEFER. (Court of Chancery of New Jersey. Aug. 8, 1900.)

MECHANICS' LIENS-PRIORITIES-NOTICE OF MATERIAL MEN'S CLAIMS.

Gen. St. p. 2073, § 38, provides that whenever any contractor shall, upon demand, refuse to pay any material man the money due him, it shall be the duty of such material man to give notice to the owner of the building of the amount due him, and that the owner shall

or.

thereupon be authorized to detain the amount due out of the amount owing to the contractId. p. 2074, § 41, provides that if the owner of a building shall, in advance of the terms of a building contract, pay any money on the contract, and the amount still due to the contractor after such payment shall be insufficient to satisfy the notices served in conformity with section 38, such owner shall be liable as if no such payment had been made. Held, that where a dispute arose between the owner of a building and one who had contracted to make repairs, and there was a submission to arbitration of matters in difference between them, concerning the materials used, etc., the liability of the owner did not mature until the award of arbitration was made, and claims of material men, of which notice was given to the owner of the building pending the arbitration proceedings, had preference over a draft drawn by the contractor on the owner in favor of plaintiff, whose claim against the contractor had no connection with the building.

Suit in equity by Alfred W. Booth and others against Elizabeth Kiefer. Judgment for defendant.

James Benny, for complainants. Elmer W. Demarest, for defendant.

PITNEY, V. C. The bill is filed by Booth & Bros. against Mrs. Kiefer to compel payment of an unaccepted draft or order dated September 15, 1899, drawn by one Buettner on Mrs. Kiefer in favor of complainants for the sum of $600, with directions to deduct the same from payment due Buettner on his contract with Mrs. Kiefer for building a house located on East Thirtieth street, in the city of Bayonne. The bill alleges that Buettner had built a house for Mrs. Kiefer, under contract, for the sum of $1,500, payable in three payments,-the first of $450, the second of $450, and the third of $600; and it alleges, in substance, that the work was completed, and that the third payment was due from Mrs. Kiefer to Buettner. It reaches this conclusion by setting out a submission to arbitration, and an award made by the arbitrators, which, as alleged, showed a balance of over $100 due from Mrs. Kiefer to Buettner. The submission to arbitration is dated November 7, 1899, and the award is dated November 27, 1899. The defendant sets up in her answer that Buettner never fulfilled his contract, and never became entitled to his last payment; that be refused to finish the job, and the parties, not being able to agree, entered into the submission to arbitration, which reads in this wise: "Witnesseth, that the said parties hereby do agree to submit all matters in difference between them concerning the kind and quality of materials used, the kind of workmanship, and the works omitted, if any, and all extra work and materials, and all deviations from the plans and specifications, as agreed," etc. It further sets up that pending the arbitration the Consumers' Coal & Ice Company, which had furnished materials to Buettner for the erection of the building to the extent of $359.70, served a notice upon defendant under the third section of the statute, and claimed the amount so due them out of what

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