representations, without the necessary imputation of dishonesty," citing Nichols v. Pinner, 18 N. Y., 295, and other cases.

The evidence in this case does not warrant the conclusion that Folsom, at any time in his life, deemed himself hopelessly insolvent, and unable to pay this and all other debts he owed.

The law recognizes the fact, "Hope springs eternal in the human breast."

As was said by Pratt, J., in Nichols v. Pinner, 18 N. Y., 299: "It is not fraudulent in him to make reasonable efforts to retrieve his fortune, and extricate himself from his embarrassment. It is not unnatural that he should cling to the hope that better times would come, that to-morrow should be as this day and much more abundant, and that with this hope he should have been impelled to buy goods, contract new debts and struggle on.'

I do not deem it profitable or necessary to discuss the point urged by the appellant, that the testimony of A. J. Hotchkin is not to be relied upon in this case. It is quite true that his relations with the plaintiff are such as not to relieve him from all suspicions of bias, and that his testimony cannot be met by Folsom, who is dead. But that fact does not render him an incompetent witness under § 829 of the Code of Civil Procedure.

If we are right in the above conclusion the title to these buggies on the sale and delivering to Folsom vested in him, and with it he acquired the right to dispose of them to the defendant.

That being so, it is difficult to see how in this action the plaintiff could challenge the defendant's title.

This is not the case of a judgment creditor seeking to set aside a transfer of property alleged to have been made in fraud of his rights.

There is no direct analogy between this action of replevin and a creditor's bill.

The theory of this action is that Folsom never had title to this property, and could therefore convey or transfer none to the defendant, and if it be held that Folsom's title is good as against the plaintiff, then the plaintiff, not being a judgment creditor, and not bringing her action as such, would not be in a position to inquire into or question the consideration moving between Folsom and this defendant.

But it is insisted on the part of the defendant that if it should be held that Folsom was a fraudulent vendee, whose title might be assailed as between him and the plaintiff, still the plaintiff having voluntarily parted with the possession to Folsom, and thus given him the evidence of title by such possession, is as to the defendant, who is a bona fide purchaser for value, estopped from setting up title as against it.

The referee in this case having found that the defendant is not a bona fide owner of these wagons for value, we are not called upon in the view we have taken in this case to review his determination of that question on this appeal.

The plaintiff, as we have seen, parted with her title to Folsom by a valid sale and cannot maintain this action upon the evidence before the court in this case.

The judgment is reversed, the referee discharged, and a new trial ordered, costs to abide the event.

LANDON, J., concurs.

THE TROY & ALBIA HORSE R. R. Co., Resp't, v. GEORGE B. SMITH, as Ex'r, App'it.

(Supreme Court, General Term, Third Department, Filed September 25, 1890.) EXECUTORS AND ADMINISTRATORS-BOUND BY KNOWLEDGE OF CO-EXECUTOR.

The treasurer of plaintiff was one H., who was also one of the execu tors of C., as was also the defendant. H. borrowed upon his note of defendant, as executor, moneys of their testator and pledged as security a bond of plaintiff, apparently valid, payable to bearer and not due. This bond was not issued and H. had no right to pledge it, but of this defendant had no knowledge. Held, that the infirmity in the title of H. to the bond attached to it in the hands of the defendant, executors being joint tenants, and that plaint.ff could recover the bond.

APPEAL from a judgment in favor of the plaintiff against the defendant, entered upon the decision of the court upon a trial without a jury at the Rensselaer circuit.

Action to recover possession of a $1,000 negotiable bond. The facts appear in the opinion at special term, as follows:

EDWARDS, J.-The defendant and Theodore E. Haslehurst were the acting executors of Gorton P. Cozzens, deceased, and Haslehurst was also the treasurer of the plaintiff, and, as such, the custodian of the bond in question. The defendant, on January 31, 1888, had, in his hands, upwards of $900 belonging to the estate, and on the application of his co-executor, Haslehurst, to him, for $900 of these moneys, an arrangement was made between them whereby the defendant then paid over to Haslehurst said $900, and took from him therefor the note of Haslehurst of that date, payable to the order of defendant as such executor, with the bond in suit as collateral. The bond was the property of the plaintiff from whose possession Haslehurst fraudulently transferred it, although without any actual knowledge of the defendant of such wrongful conversion. Haslehurst has died insolvent, and leaving the note unpaid. The defendant claims that the estate represented by him can hold the bond as collateral to the note. In support of his assertion he maintains that the bond being negotiable and not yet matured, a purchaser for value will be protected unless the purchase was made with notice of the seller's defective title or in bad faith; that he owes no duty of vigilance to the owner of the paper, and his title cannot be defeated or impaired by mere negligence in making the purchase. That an executor is answerable for the due administration of assets which comes into his possession, and is not responsible for the waste, negligence or other conduct of a co-executor in which he did not concur. He insists that these moneys of the estate being in his individual possession and he alone being responsible for the use of them, the loan must be regarded as made by himself individually to Haslehurst, and that the estate represented by him is entitled to the same protection as if the loan had been made to a stranger who had

delivered the bond as collateral to defendant. Of the accuracy of the defendant's legal propositions in respect to the liability of an executor for the acts and defaults of his associate and in respect to the protection which the law affords to such paper in the hands of a bona fide holder there is not much room for doubt. But I incline to think that the defendant cannot properly invoke these principles for his protection in the case. If Haslehurst were not his co-executor, but rather a stranger to the estate, I think the defendant could hold the bond as against the plaintiff. But herein I think a distinction obtains. The $900 belonged to the estate. The defendant and Haslehurst, as executors, were the joint owners of it, and were equally entitled to its possession. Although it was in fact in the sole possession of the defendant, as executor, the executors together agreed that it should be transferred to Haslehurst, and that the estate should hold in the place of it the note of Haslehurst and the bond in question as collateral. The transaction was with the concurrence of the two executors; it was in fact their joint action. If the money had been loaned to a third person from whom a purloined bond had been taken as collateral, the executors acting together in making such a loan and taking such security, Haslehurst's knowledge of the defective title to the bond would preclude the estate from holding it as against the real owner. The fact that the money loaned was in the individual possession of the defendant, who also took possession of the bond, would not relieve the title of the estate to the bond from its infirmity. Executors have a joint estate in the property of the decedent. They are considered in law as but one person, and notice to one is notice to all. It is diffi cult to see how the fact that the executors have made the loan to one of themselves takes the case out of the operation of the principle. The defendant's theory is that he alone as executor took and holds the bond, and that Haslehurst, so far as this transaction is concerned, was in law a stranger to the estate. If the defendant had subsequently died with the bond in his possession and Haslehurst were the sole surviving executor I apprehend that he would be a proper person to bring an action on the bond in case of its maturity and default, and the fact that such executor had purloined it would be an available defense.

I think the estate must be deemed to have taken the bond in suit with knowledge of the defect of title, and the defendant should be adjudged to surrender it to the plaintiff.

Merritt & Evan, for app'lt; Smith & Parmenter, for resp't.

LANDON, J.-Haslehurst knew that the bond belonged to the plaintiff, and not to himself. He and the defendant were executors of Cozzens. What he knew as an individual with respect to his lack of title to the bond lie could not help knowing as executor. Holden v. N. Y. & Erie Bank, 72 N. Y., 286. When he delivered the bond to his co-executor, the defendant, whatever title was thereby conferred, was conferred upon himself and the defendant as co-executors, and with all the infirmity of which Haslehurst had knowledge. This results from their holding the

estate of their testator as joint tenants. 1 R. S., m. p., 727, § 44. The two are esteemed one person with respect to the title whereby they hold, Wheeler v. Wheeler, 9 Cow., 34, although each one is only liable for his own acts. Ormiston v. Olcott, 84 N. Y., 339. Whatever title the defendant has to the bond is in his right as executor, and he can have no better title than his co-tenant had. Whether he will be made personally liable to the estate for allowing Haslehurst to convert the money of the estate to his own use cannot be determined in this action.

Judgment affirmed, with costs.

LEARNED, P. J., and MAYHAM, J., concur.

THE PEOPLE, Pl'ffs, v. WILLIAM H. COUGHTRY, Def't. (5 Cases.)

(Supreme Court, Special Term, Albany County, Filed August 26, 1890.) GAME LAW-VENUE,

The place of trial of an action to recover penalties under the game laws may be changed for the convenience of witnesses. The right of the court to make such change is not prohibited by the provisions of § 3 of chap. 577, Laws 1888.

MOTION to change place of trial from Columbia county to Albany county.

A. B. Gardenier, for pl'ffs; F. M. Danaher, for def't.

LEARNED, J.-These five actions were all commenced April 3, 1890. They are brought to recover penalties amounting to $975, under the game laws, for exposing quail for sale, etc., during March, 1890; thirty-nine quail in all. The acts are alleged to have been committed in the county of Albany. The actions are brought in the county of Columbia by counsel employed by the game and fish protector, because the district attorney of that county is too busy to give the suits prompt and necessary attention. The defendant now moves to change the place of trial to the county of Albany for the convenience of witnesses, of whom, there residing, he shows that he needs about twenty-four. The plaintiff makes no affidavit in reply. All of the allegations, therefore, of the defendant's affidavit are to be taken as true.

He alleges that a girl unknown to him, but since discovered to be Katie Myers, living with one Harrison McDonald, alleged to be a professional informer, came to defendant apparently in great distress, and stated that Dr. Vanderveer had ordered quail for Nathan P. Hinman, Esq., a well-known counsellor, and a friend of defendant's, then sick; that said Katie Myers made defendant believe that she was said Hinman's daughter; that defendant told her he was a grocer and did not deal in game, had none, and would not sell them if he had; that said girl persisted in her request; alleged said Hinman's illness and Dr. Vanderveer's orders, and asked defendant if he could not suggest some one who could procure them for her, and who could bring them to the Delaware & Hudson Canal Company's depot for the Delmar train, said Hinman living at Delmar; that the procuring of said quail was entrusted to a boy, O'Leary.

That said girl on other days appeared at defendant's place of business in his absence and expressed Mr. Hinman's gratitude, and again had O'Leary procure quail without defendant's knowledge. That defendant did not procure said quail or see them or have them in his possession.

That, on being sued, he learned from said Hinman that the girl was not his daughter, and that he knew nothing of the business, and from Dr. Vanderveer that he also knew nothing of the business; and defendant avers that he was the victim of a conspiracy by said McDonald.

If these statements of defendant are true, and there is no denial made, the court cannot pass the matter over without a rebuke of the parties who thus, as alleged, obtained the quail. They were obtained through the meanest of lies, by which the kindness of defendant towards a sick friend was worked upon, so as to induce him, as alleged, to violate the game laws. It is not immoral to sell quail in March, but it is immoral to lie in order to excite sympathy, for the purpose of making money out of penalties, incurred through a desire to do a kindness. If game can only be protected by such practices, it would best be destroyed. Honesty is worth more than quail.

The plaintiff insists that under chap. 577, Laws of 1888, § 3, the court has no power to change the place of trial.

The material part of that section is as follows: "Such suits shall be commenced on the order of any game and fish protector in the name of the people by any district attorney where the offense shall be alleged to have been committed or by the district attorney of an adjoining county; and such suits shall be prosecuted where they shall be commenced unless for good cause shown a discontinuance shall be directed."

Sections 1, 3 and 4 of chap. 317, Laws 1883, are repealed by § 10 of the act above cited.

Leonard v. Ehrich, 40 Hun, 460, contains no reference to the act now in question, and does not speak of actions brought by the district attorney in the name of the people.

These actions are not brought under § 33, chap. 534, Laws

1879.

In People v. MacDonald, 108 N. Y., 655; 13 N. Y. State Rep., 902, which arose on the construction of § 1, chap. 317, Laws 1883, since repealed, it was held that that section did not authorize the district attorney of Fulton county to sue in that county for a penalty for violation of the game laws committed in Saratoga county.

The counsel for the defendant has urged, in a very able brief, supported by many authorities, that a law requiring a penal, or quasi penal, action to be tried in a county other than that where the offense was committed, would be unconstitutional, as taking away one of the elements of trial by jury. That is certainly a very important question and I think the position of counsel has great weight. But it does not seem to me necessary to decide it here.

The general rule as to actions to recover penalties is stated in