Concurring opinion of WELLES, J. ing to the plaintiffs; and I am not aware of any principle, by force of which, the decree in this case can be regarded as a bar to the plaintiffs' claim. Suppose the plaintiffs had delivered the note in question to the defendant, as their agent, in due season, for the purpose of collection, or of receiving a distributive share upon it from the assets of the estate of the maker, and the defendant had treated it as a claim of his own, and received in his own name the sixty per cent. on the amount; no one would pretend, that under such circumstances, the decree of the surrogate, adjudging the money to be due to him, would protect the defendant against the plaintiffs' action to recover the money thus received. This, it seems to me, is conclusive, to show that the decree of the surrogate possesses no efficacy as a legal bar in the present case, and that the question *of *230] the plaintiffs' right of recovery is an open one, depending entirely upon other principles. To allow the plaintiffs to sustain the present action, so far from attacking or impeaching the decree, is affirming and sustaining it. The plaintiffs say, that the defendant, by virtue of a legal and valid decree, has received money which legally and equitably belongs to them, and which, it would be contrary to justice to allow him to retain. If the facts found by the referee justify such allegation, the decree of the surrogate, in my judgment, is not in the way of a recovery. III. Did the plaintiffs receive, and have they continued to hold, the note on account of which the money in question was received, under such circumstances as to make them bonâ fide holders, or to protect them against payments to, or acts done by, the payee. The note bore date March 15th, 1841, payable to Joseph O. Hasbrouck, or bearer, and was payable April 1st, 1843. On the first day of May 1841, the payee assigned and delivered it to the plaintiffs, with other securities, for the purpose of securing the payment of a bond, at the same Concurring opinion of WELLES, J time given by him to them, and the plaintiffs have ever since held the note. The debt, to secure the payment of which, the note in question was transferred to the plaintiffs, remains unpaid, to an amount greater than that received by the defendant on the note. According to the case of Manhattan Co. v. Reynolds (2 Hill 140), no act of Joseph Hasbrouck, the payee, either of payment or otherwise, made or done after the transfer, could affect the note in the hands of the plaintiffs. The transfer to the plaintiffs did not render them bond fide holders, in a commercial sense, so as to preclude a defence existing at the time of the transfer; but it carried a qualified property to the plaintiffs, which neither the payee nor any person deriving title from him, had power to divest or affect in any way. The court, in the case referred to, say, "The distinction lies between the transfer of a legal and an equitable interest in a chose in action. In the latter case, the debtor may treat with the payee, (assignee?) until he has notice; in the former, not." I incline to think, the distinction *is sound, and am prepared to adopt the doctrine of the case. It follows, that the objection under consideration must fail. [ * 231 IV. Is the defendant entitled to protection, because he allowed the note as a proper demand against the estate of which he was administrator, in favor of the payee, and paid him all he was allowed on account of it, from the assets of the estate, in good faith and without notice, &c. If the case warranted the assumption, that the defendant had paid the money in question to the payee of the note, as a creditor of the estate, in good faith, and had charged the moneys so paid in his account with the estate, in the regular course of administration, the case might be different. The facts, as they appear in the referee's report, will not justify any such view of the case. It appears, that "soon after" the letters of administra Concurring opinion of WELLES, J. tion were granted, Joseph O. Hasbrouck, the payee of the note, presented a claim in his own name, &c., on account of the note and another note of the decedent, and of an account against the decedent, which claim was not contested, but was admitted by the defendant as a just claim against the estate. That the defendant advanced to and for the benefit of the said Joseph O. Hasbrouck, on account of such claim, about the month of June 1844, $120.67, and in 1845, before July of that year, paid to one Winfield, at the request of the said Joseph O. Hasbrouck, $130, or thereabouts, under an agreement with the said Joseph O. Hasbrouck that such payment was to be deemed an advance and payment of the said claim; and that it was also at the same time agreed by said Joseph O. Hasbrouck that he would give the defendant a receipt in full against said claim, the defendant agreeing to apply any balance owing to the said Joseph on such claim, to his credit on defendant's account against him. This is all there is in the case, to show that the defendant paid the two sums, as adminis trator, and in the regular course of administration. If it stopped here, it would present, to say the least, a doubtful and suspicious case. In the first place, it is not shown, what was the amount of the claim presented upon which the payments were made. It was the note in question, with another note, and an account against Jophat Hasbrouck, · * 232 ] deceased, *without stating the amount of such other note and the account, or of either of them; the times when the sums were paid is left indefinite. The balance which might remain due on the claim was to be, and was credited by the defendant on bookaccount, and it does not appear what such balance was. In the next place, when the administrator and administratrix rendered their accounts to the surrogate, no charge was made of these payments, although an account for expenses and payments was rendered and Concurring opinion of WELLES, J. allowed by the surrogate. And where it distinctly appears, as it does, that the defendant was placed in the list of creditors of the estate, on the same footing ast other general creditors, for the amount, and expressly on account of this very note, and entitled to the sixty per cent. out of the assets in the hands of himself, as administrator, and the administratrix, in common with other creditors, and that he afterwards received the sixty per cent. accordingly, it seems to me, there can be no doubt, that his claim to the note in question was that of purchaser only, and was so regarded and treated by the surrogate. Assuming then, as I think we are bound to do, that the defendant's only claim to the money in question, was as the purchaser from Joseph O. Hasbrouck of the note in the hands of the plaintiffs, and the legal title to which was in them, did he, under the circumstances, acquire any legal right to the note, or to the money which was the fruits of it, by his purchase from the payee? The question admits of an answer in the negative only. If the note had been payable to Joseph O. Hasbrouck's order, and had been indorsed by him to the order of the plaintiffs, and had been purchased by the defendant, on a forged indorsement of the plaintiffs, it is clear, upon the principle of adjudged cases, that he would be liable to pay over to the plaintiffs whatever moneys he should have received on account of the note. (Canal Bank v. Bank of Albany, 1 Hill 287; Talbot v. Bank of Rochester, Id. 295.) The defendant acquired no more right to this note, or the money in question, than if he had received it through a forged indorsement. There was a total defect in his title, or rather an entire absence of title to either; the payee of the note could pass no more title than he had himself, *which was none whatever. It follows, that the money [ * 230 he received upon it, belonged to the plaintiffs, who should have been allowed to recover it. 6 N. Y.-15 225 Statement of the Case. The judgment of the general term should be reversed, and that of the special term affirmed. Judgment reversed, and that of the special term affirmed. JONES V. OSGOOD. General exception to charge. A general exception to the charge, containing distinct propositions, is unavailing, unless each of them be erroneous, and to the party's prejudice. APPEAL from the general term of the Supreme Court, in the seventh district, where a judgment entered upon a verdict in favor of the defendant, had been affirmed. This was an action of replevin in the detinet, for a canal-boat, in which the property had been delivered to the plaintiff by virtue of the writ. The defendant pleaded: 1. That he did not detain the boat. 2. That the property in the same was in one Lowell. 3. That it was in Lowell and the defendant. * 234] *Upon the trial, the judge (WELLES, J.) charged the jury, that the contract proved between the plaintiff and Lowell, was a conditional sale of the boat to Lowell, and gave him a right to possession, until default in payment. That the sale of the boat by Lowell to the defendant, and the transfer of the possession to him, subject to the contract, were rightful, and did not work a forfeiture, so as to authorize the plaintiff to take possession. That except upon forfeiture, by failure of payment, the |