Barnes v. Buck.

although the word used in the law may be the word contract, without any expressed qualification. The constitution of the United States provides that no State shall pass any law impairing the obligation of contracts. (Art. 1, § 10.) The constitution contains no terms expressly qualifying the meaning of the word "contracts," as thus employed; and if the contract of marriage is to be excepted from the operation of this constitutional provision, it must be upon the ground above suggested, that the marriage contract is sui generis, so special and peculiar in its nature, that it would not be understood, in the popular and general understanding of men, to be included in the term contract unless specially mentioned.

That question was discussed by a learned judge in the Court of Appeals in Lawrence v. Miller (2 Comstock, 245), but the majority of the court placed their decision upon another ground. (See page 253.) But in White v. White (5 Barb. 474), it was decided that the word contracts in the constitution of the United States did not embrace marriage

contracts.

Mr. Justice MARVIN, in the case of Saddlesvene v. Arms, gave unanswerable reasons why an attachment is not allowable in an action for a wrong as for assault and battery, or slander. He deduced such conclusions from the various provisions of the Code compared together, and other statutes in pari materia, as well as by an examination of the machinery of the proceeding by warrant of attachment. He says (32 How. 285): "It is true, he (that is the plaintiff) is to specify the amount of the claim and the grounds of it; but in most actions of tort the damages are uncertain and entirely unknown until the verdict of the jury is rendered, and the plaintiff may fix them at any sum without the fear of conviction for perjury. This will not be so if the action is for the breach of a contract, for then the facts constituting the contract and the breach must be stated as the 'grounds' of the claim, and the amount of the claim must be stated. Here are sundry facts to be stated, and if they are not truly stated, the person making the affidavit may be convicted of perjury."

Barnes v. Buck.

These observations furnish a sound basis for his conclusion; and they further show, that in speaking of a contract and the breach of it, he referred to a contract in the general and usual acceptation of that term, without thinking of the peculiar contract of marriage; for in the case of an action founded on a breach of the latter, the damages are as uncertain and undefinable as they possibly can be in an action of slander or assault and battery. And this illustrates in a very forcible. manner that the term "contract," as employed in ordinary and popular language is not supposed to include the contract. of marriage.

The learned judge comes to the conclusion in the decision referred to, that "this remedy (by attachment) is confined to actions upon contract, in which the amount to which the plaintiff is entitled can be specified" (32 How., 286); and I fully concur in his reasoning and conclusion, which apply with equal force to the present case.

Whether the same identical words have the same meaning as they are used in §§ 129, 227 and 246 of the Code, it is not now necessary to determine. The construction put upon them as used in § 129, has been very fully considered in the case of Tuttle v. Smith (14 How., 395), and that decision approved in Cobb v. Dunkin (19 How., 164), both General Term decisions; and those decisions were remarked upon as settling the construction of § 129, in a later case at Special Term in another district. (Norton v. Cary, 23 How., 469.) This construction is alluded to by Justice MARVIN, in Saddlesvene v. Arms (32 How., 283, 284); but without admitting that the warrant of attachment is to be confined to those cases, in which the summons must state that judgment will be taken for a specific sum if the defendant fails to answer, or to cases of liquidated damages.

If we adopt the construction put upon this language as used in reference to the summons in § 129, and give the same construction to the same language in § 227, it would follow that no attachment can be allowed in an action on a breach of promise of marriage. But even if that construction is too

Huggans v. Fryer.

limited, as to which no opinion need be here expressed, I am
still of the opinion that a warrant of attachment cannot be
issued under the Code, except in case of actions arising on
contract for the recovery of money only, where the breach
of the contract can be compensated by some recognized legal
rule or rate of damages, so that the sum due can be made
certain either by computation or by evidence. In short, the
contract must be one of a pecuniary character. This is not
the case where the contract is, that one person will marry
another, and nothing else. Such a contract is not, in any law-
ful sense, or ought not to be, a cash transaction. An order
must be entered setting aside the attachment issued in this
action, but no costs of the motion ought to be given.
Order affirmed.

GAMALIEL HUGGANS, Respondent, v. DANFORTH J. FRYER,

Appellant.

(GENERAL TERM, THIRD DISTRICT, MAY, 1869.)

A mortgagee of chattels, whose mortgage, in addition to the usual condition
in case of non-payment, &c., contains a clause authorizing him, at any
time, if he shall "deem himself unsafe," to take possession of the mort-
gaged property, “and to sell the same at public or private sale," may, in
conformity to the terms of such clause, take possession of said property
before the debt falls due, and sell the same, without making a demand for
payment, and without giving personal notice of sale to the mortgagor.
If the property be unsafe, it seems, under such a clause, the mortgage debt
becomes due, and the mortgagee acquires an absolute title to the property,
subject to the mortgagor's right to redeem; and the right of redemption
is cut off by the sale.

The mortgagee, in virtue of such a provision, took possession, advertised,
and sold the mortgaged property, without demand, or personal notice of
sale to the mortgagor, and brought an action for a balance due upon the
mortgage, after applying the proceeds. It was held, that the mortgage
was properly received, at the trial, as evidence of the claim thereon.
Also, there being no proof of fraud in the sale, and the question being put
to the plaintiff, as a witness, without intending to establish fraud, whether

Huggans v. Fryer.

the purchaser paid him any money thereon, that such question was properly excluded, as well as testimony upon. the value of the property. Held, also, plaintiff might show that the sale was fairly made, and that plaintuf's testimony was competent upon the question whether he "deemed himself unsafe" to allow the property to remain in defendant's possession.

THIS was an appeal from a judgment entered on a verdict rendered at the Greene county circuit, in favor of the plaintiff and against the defendant, on the third day of June, 1868.

The action was brought to recover the amount of a promissory note made by defendant for twenty-three dollars and interest, and also a balance due the plaintiff upon a chattel mortgage given by the defendant to him for $175. It appeared upon the trial that on the 6th day of April, 1866, the respondent sold a yoke of oxen to the appellant for $175, and took back a mortgage upon the oxen for the price payable with interest on the 6th day of April, 1867, with a condition that in case of non-payment the plaintiff might take and sell the property to satisfy the debt. And with the further condition that in case the plaintiff should at any time deem himself unsafe, it should be lawful for him to take possession of the property, and to sell the same at public or private sale previous to the time above mentioned for the payment of said debt, applying the proceeds as aforesaid after deducting the expenses of the sale and of keeping the property.

It also contained a covenant that, if from any cause the property should fail to satisfy the debt, interest, costs and charges. -the defendant would pay the deficiency.

The plaintiff, before the expiration of the year, deemed himself unsafe, and took possession of the property and sold the same, upon a public notice of sale of six days, applying the proceeds upon the mortgage, and brought this action for the deficiency, and on the promissory note which he held against the defendant.

1

The execution of the note and mortgage was admitted by the answer.

Upon the trial the counsel for the defendant objected to the

Huggans v. Fryer.

introduction of the mortgage upon the grounds, that under the complaint no recovery could be had, as no notice of sale had been given to, nor demand made of the defendant; that without allegation of such notice and such demand, no evidence could be given. The court overruled the objection; the defendant excepted, and the mortgage was introduced in evidence. Evidence of the notice of sale was also objected to upon the same grounds and admitted. Exception was duly taken. Other testimony was admitted under objection, and exceptions were taken to the rulings made in regard thereto, as stated in the opinion. At the close of the evidence the counsel for the defendant moved for a nonsuit as to the claim upon the mortgage upon various grounds, and mainly upon the grounds of a want, of personal notice of the sale to the defendant, and of demand of payment before the sale, and that the sale was not made in good faith, but in fraud of the defendant's rights. The motion was denied, and an exception taken. No evidence being given on the behalf of the defendant, the court directed a verdict in favor of the plaintiff for the amount claimed, being $149.10. Judgment was duly entered, and the defendant appealed to the General Term of this court.

James B. Olney, for the appellant.

Rufus N. King, for the respondent.

Present-MILLER, INGALLS and PECKHAM, JJ.

By the Court-MILLER, P. J. The chattel mortgage upon which the plaintiff claimed to recover in this action contained a condition that, in case the plaintiff should at any time deem himself unsafe, it should be lawful for him to take possession of the property mortgaged, and to sell the same at public or private sale, and apply the proceeds to the payment of the debt. The plaintiff, deeming himself unsafe, took possession of the property before the mortgage became due, and sold the same without giving personal notice to the defendant. It is contended by the counsel for the defendant, that the sale