Dennis v Ryan.

a certain district. He stated his case to the court, and the commissioners entertained a claim against a person, whom Morley's statement showed did not come within the jurisdiction. It was held that he was not liable. The court, after citing Cohen v. Morgan, supra, said: It is clear from that and other cases and upon principle, that a party who merely originates a suit by stating his case to a court of justice is not guilty of trespass, though the proceedings should be erroneous or without jurisdiction.' 1 Gale & Dav. 282,283. "The principle governing this class of cases is thus stated by GRAY, arguendo, in Farley v. Danks, 4 Ell. & Black. 497. As his argument was made to show the plaintiff's right to recover in an action for malicious prosecution, and as his reasoning was closely followed by the court in its decision, it goes undoubtedly as far as any case can be found to proceed. He said: If a party falsely and maliciously, and without probable cause, charged another with a felony, a robbery for instance, he would be liable for a malicious prosecution for felony, though the facts to which he swore did not technically show a robbery. It would, indeed, be otherwise, if he simply stated the facts, and did not suggest that there was a robbery. That was the principle of Leigh v. Webb, 3 Esp. 165, and Milton v. Elmore, 4 C. & P. 456.' Here the counsel for the plaintiff assumes that all the ingredients of an action for malicious prosecution exist, viz., malice, falsity and want of probable cause, and yet concedes that an action is not maintainable against one who simply makes a statement, without any suggestion that a crime has been committed.

"In Tempest v. Chambers, 1 Starke, 55, one count in a declaration was for maliciously, and without probable cause, procuring the plaintiff to be arrested on a charge of felony. The allegation was, that the defendant appeared before a magistrate and charged the plaintiff with having feloniously taken away a pair of shutters belonging to the defendant. Upon the information being produced, it appeared on the face of the information, that the defendant had charged the plaintiff with having unlawfully taken away a pair of shutters belonging to the plaintiff and having converted the same to his own use. Lord ELLENBOROUGH was of opinion that the variance was fatal, since it appeared that the defendant had not charged the plaintiff with a felony, but with a bare trespass in taking away the shutters, for which no warrant ought to have issued. This case is a clear recognition of the doctrines maintained in the opinion, since, if the mere statement of the facts was the moving cause of the arrest, then the defendant did charge the plaintiff with a felonious theft of the goods.

The case of Milton v. Elmore, 4 Carrington & Payne, 456, is strongly in favor of the defendant. In that case a servant of Elmore stated before a magistrate that Milton came into his employer's (Elmore's) yard and took from a stable there two geldings, the property of Elmore, and rode them away, though he was told that he must not. It was held that this statement did not support a count for malicious prosecution, which alleged that the information charged Milton with having feloniously stolen and ridden away with two geldings. It is plain that in this case, also, if the statement made by the servant was the procuring cause of the arrest, he did, in point of law, charge Milton with having stolen the geldings. The variance was only fatal on the ground that the statement of facts had no natural connection with the magistrate's proceedings.

"Some of the cases which are alleged to be in conflict with these views will now be noticed. One of these is Farley v. Danks, supra. In this case, the declaration charged, that the defendant falsely and maliciously, etc., filed a

petition for adjudication of bankruptcy against the plaintiff, and caused and procured him to be declared bankrupt. It was held that this charge was sustained by proof, that the defendant petitioned for the adjudication, and by depositions false in fact, and maliciously made, led the commissioner to adjudicate the bankruptcy, though it appeared that, even if the depositions had been true, the adjudication could not have been supported in law. It, however, distinctly appeared in that case that the defendant stated in his petition that he had been informed and believed that plaintiff did lately commit an act of bankruptcy, within the true intent and meaning of the act of bankruptcy,' and made affidavit that the allegations in the petition were true. This case steers wide of the one at bar, since there was a specific allegation of an act of bankruptcy, and not a mere general statement of facts from which the commissioner of bankruptcy might have drawn his own conclusion. It was on this point that Gray, of counsel for the plaintiff, relied in making the distinction which I have already quoted from him. The language of the court must be construed from this point of view; moreover, it must be considered that in this case the defendant set the proceedings in motion. He made the affidavit and presented it to the commissioner as the basis for some action. In the case at bar, the defendant simply conversed with the district attorney, who, of his own motion, instituted the proceedings. Furley v. Danks does not controvert the general principle that the defendant must be the procuring cause of the arrest, but maintains under a state of facts not parallel with those now under discussion, that the defendant did cause the wrongful act.

“Anderson v. Buchanan, Wright (Ohio), 725, is not opposed to these views. In that case, Anderson was actively the prosecutor of the charge, and made an affidavit which was claimed to be insufficient in form. The court said: The present plaintiff seeks to avoid responsibility for his malicious prosecution of Anderson, on account of the want of technical precision in the preliminary steps which he took to subject him to criminal punishment. He commenced and carried on the criminal charge in his own way, and when defeated would avoid responsibility by alleging his own mistakes. A convenient method of escaping responsibility-which secures a malicious man the oppor tunity of wreaking his vengeance with impunity, because he so shaped his proceedings that the law would adjudge them insufficient if objected to. In no view can it be a defense to this action, that the proceedings in the criminal prosecution were erroneous.' P. 726. The whole opinion proceeds upon the active interference of Buchanan, the defendant, who alleged in his affidavit perjury. The case thus falls within the rule in Farley v. Danks, supra, and as has been shown is not parallel with the case at bar.

"Collins v. Love, 7 Black, 416, which is very meagerly reported, apparently turns upon the same point. It was a question as to the validity of a pleading. The count is presented in the report in the following terms The defendant, etc., intending, etc., went before a justice, etc., and without, etc., charged the plaintiff, etc., and thereupon falsely, etc., and without, etc., procured the justice to make his warrant, etc." It was held that the count was not objectionable, because the alleged charge did not authorize the issuing of the warrant. It will be observed that in this case the defendant was the actor in the proceedings, and must also have charged the crime for which the justice issued the warrant. This is the reasonable interpretation of the words 'charged the plaintiff, etc.' It is but another illustration of the rule in Farley v. Danks, supra.

McCaffrey v. Woodin.

"The case of Morris v. Scott, 21 Wend. 281, has been so fully considered by the chief commissioner that it is only necessary for me to say that I concur in his exposition of it, and do not see that it conflicts with the view taken in this opinion. So far as it holds that an action for malicious prosecution will lie where a court has no jurisdiction, it is controverted by Turpin v. Remy, 2 Black, 211; Bixby v. Brundegei, 2 Gray, 129, and 1 American Leading Cases, 208, 209, 4th ed. It cannot be pressed so far as to maintain that an action of trespass will lie against one who merely makes a statement to an officer having no jurisdiction upon which he proceeds to act, without controverting Carratt v. Morley, supra, and other cases already considered."

MCCAFFREY V. WOODIN, appellant.

(65 N. Y. 459.)

Mortgage of property not acquired — condition in lease, for lien on crops to be

grown.

A lease provided that the lessor should have a lien as security, for the payment of the rent on all goods, implements, stock, fixtures, tools and other personal property, which may be put on said premises, said lien to be enforced on the non-payment of rent," by taking and sale as in case of a chattel mort gage. Default being made, the lessor seized farm produce and stock and sold it, and the lessee brought an action for conversion. Held, that the provision was in substance a chattel mortgage; that, as the property was not then in existence or acquired, it conveyed no present legal tittle, but was a valid license to enter and seize the property if in existence on default, and that, after such entry and seizure, the title vested in the lessor. Held, also, that in equity, the lien would attach and bind the property as soon as acquired. (See note, p. 653.)

CTION of trover. The opinion states the case.

A foun

The jury

found a verdict for the plaintiff, and the General Term affirmed the judgment entered thereon (62 Barb. 316), and defendant appealed.

Joseph H. Stull, for appellant. The court erred in holding that the covenant in the lease as to taking property on default in payment of rent was a mere license. Jamison v. Milleman, 3 Duer, 255; Babcock v. Utter, 1 Keyes, 115; Ex parte Coburn, 1 Cow. 568; Mumford v. Whitney, 15 Wend. 380; Tillotson v. Preston, 7 Johns. 285; Simpkins v. Rogers, 15 Ill. 397; Woodward v. Seeley, 11 id. 157; Wood v. Leadbitter, 13 M. & W. 838, 844, 845; Bryan v. Whistler, 8 B. & C. 288; Hewlins v. Shipman, 5 id. 222; 13 M. &

McCaffrey v. Woodin.

W. 845. As between lessee and lessor, a chattel mortgage upon crops to be raised by the lessee on the premises is valid. Butt v. Elliott, 19 Wall. 544; Conderman v. Smith, 41 Barb. 404; Andrew v. Newcomb, 32 N. Y. 417; Shuart v. Taylor, 7 How. Pr. 251; Van Hoozen v. Corey, 34 Barb. 9.

The lien clause in the Milliman v. Neher, 20 Barb. 37,

Edward Harris, for respondent. lease was not a chattel mortgage.

40; Edyell v. Hart, 5 Seld. 217; Brownell v. Hawkins, 4 Barb. 491. If regarded as a chattel mortgage, it was absolutely void. Conderman v. Smith, 41 Barb. 404; Otis v. Sill, 8 id. 102; Morrill v. Noyes, 3 Am. L. Reg. (N. S.) 23. It was invalia, for any purpose, except that within some cases it might be deemed an executory contract for a lien as security for rent, not creating a specific lien, but to be enforced by an equitable action at law. 8 Am. L. Reg. (N. S.) 611; Otis v. Sill, 8 Barb. 111; Van Hoozen v. Corey, 34 id.

10.

DWIGHT, C. This is an action of trover to recover certain farm stock, a quantity of hay and other farm produce, valued at $200. The defense is that the defendant took the property by virtue of the following provision in a lease made by Catharine Beahan to the plaintiff, under which he held the farm upon which the crops were grown: "It is agreed that the said party of the first part shall have a lien as security for the payment of the rent aforesaid, on all goods, implements, stock, fixtures, tools and other personal property, which may be put on said premises, and such lien to be enforced on the non-payment of the rent aforesaid, by the taking and sale of such property in the same manner as in cases of chattel mortgage on default thereof." The defendant acted as agent of Mrs. Beahan. The property was taken in default of the payment of rent due by the terms of the lease. It was seized by the defendant on February 2, 1869. Notices of sale were put up, and the hay, oats, cornstalks and straw were sold at auction February 10, 1869, to make $100, balance of rent accrued. Soon after the 1st of April, 1869, the two horses were advertised for sale, and sold at auction, to make the remaining installment of rent. The plaintiff forbade both sales. The judge, at the trial, refused to submit any question to the jury but that of damages.

The theory of the plaintiff is that the clause in the lease already referred to amounted to no more than a license to take the goods,

McCaffrey v. Woodin.

and that, having forbidden the sale, the license was countermandable and is at an end. In considering the rights of the parties, it will be proper to investigate the claims of the lessor, Mrs. Beahan, both in law and equity. If it should be found, on examination, that her right to seize and hold the property cannot be recognized in a court of law, still the defendant may, under the Code, urge any equitable defense which he may have to the plaintiff's action. Code, § 150.

I. The most satisfactory mode of considering Mrs. Beahan's right in law is, for the time being, to regard the clause in the lease as purporting to create a chattel mortgage upon property not in existence or not yet acquired. If it should be found to be a valid instrument in that respect, it would then be proper to ascertain whether the clause in question can be regarded as a chattel mortgage, or as equivalent to it.

It must be conceded that if such a transaction as the present had been entered into in the ordinary form of a mortgage, it would not have been an executed contract, but rather executory in its

An instrument considered as an assignment will not (at law) pass a title to chattels not in existence, or not in the ownership of the grantor, or not sufficiently appropriated at the time of the assignment. 2 Hilliard on Mortgages, p. 408, § 4. If, however, the instrument be so framed as to give the mortgagee a power of seizing such future chattels of the grantor as they should be acquired by him and brought upon the premises, they will pass, after such seizure, where there is already a foundation of interest in the grantor. This is an old rule in the law, and rests, to some extent, upon a maxim stated by Lord BACON, and quoted by Mr. Broom. The maxim is as follows: "Licet dispositio de interesse futuro sit inutilis, tamen potest fieri declaratio præcedere quæ 801tiatur effectum, interveniente novo actu." Mr. Broom's rendering of this maxim is: "Though the grant of a future interest is invalid, yet a declaration precedent may be made which will take effect on the intervention of some new act." He subjoins an illustration of it, quite pertinent to the facts of the case at bar. He says: "For instance, a power contained in an indenture to seize future crops, if unexecuted, would be of no avail against an execution levied, as giving no equitable title to any specific crops, yet if the power be subsequently executed by the grantee taking possession of the then growing crops, the seizure will be good as against