office, and no such deed could be found, owing to a mistake of the clerk in indexing the records; what was offered to be shown certainly could not tend to prove the truth, when the defendant admits in his notice that the words were untrue; and it seems to me they go far to diminish the quantum of malice; perhaps they show as far as can be done the absence of malice. The plaintiff, however, must recover, for the speaking actionable words is sufficient evidence of malice to sustain the action; but the facts offered to be proved show that the defendant really believed that he had been deceived by the plaintiff, and was in danger of losing his debt, and that he did not make the charge until more than one search had been made at the clerk's office; and when this is taken in connection with the proof in the cause that on one occasion the language was drawn from the defendant by the provocation of the plaintiff, who went to defendant's store with a witness with intent to draw from him words upon which he might prosecute, I think the evidence peculiarly proper. I am of opinion that a new trial be granted, costs to abide the event.

WORDS CHARGING FALSE SWEARING, WHEN ACTIONABLE.-See Hopkins v. Beedle, 2 Am. Dec. 191, and note; Rue v. Mitchell, 1 Id. 258; Pelton v. Ward, 2 Id. 251; Shaffer v. Kintzer, Id. 488; Ward v. Clark, 3 Id. 383. That such a charge is actionable per se if it conveys to the mind of the hearer an imputation of perjury, however that may be done, is held, referring to Gilman v. Lowell as authority, in Sherwood v. Chace, 11 Wend. 39; Coons v. Robinson, 3 Barb. 633; Rundell v. Butler, 7 Id. 262; Phincle v. Vaughan, 12 Id. 216; Kern v. Towsley, 51 Id. 394.

WORDS ACTIONABLE PER SE GENERALLY.-See the note to Coburn v. Harwood, 12 Am. Dec. 37; Lewis v. Hawley, 2 Id. 121; Miles v. Oldfield, Id. 412; McMillan v. Birch, Id. 426; Buys v. Gillespie, 3 Id. 404; Sheely v. Biggs, Id. 552; Elliot v. Ailsberry, 5 Id. 631; Chaddock v. Briggs, 7 Id. 137, and note; Martin v. Stillwell, Id. 374; Burtch v. Nickerson, 8 Id. 390; Shipp v. McCraw, 9 Id. 611, and note; Walton v. Singleton, 10 Id. 472; Brite v. Gill, 15 Id. 122; Smalley v. Anderson, Id. 121; Wonson v. Sayward, 23 Id. 691.

EVIDENCE IN MITIGATION UNDER GENERAL ISSUE.-This subject is discussed in the note to Alderman v. French, 11 Am. Dec. 130. That evidence is admissible in mitigation of damages under the general issue, if it does not amount to a justification, or prove, or tend to prove, the truth of the charge, but not otherwise, see Bailey v. Hyde, 8 Am. Dec. 202; Treat v. Browning, 10 Id. 156; Wormouth v. Cramer, 20 Id. 706. So where the facts offered in mitigation tend to rebut malice by showing that the plaintiff had ground to believe, and did believe, the charge to be true, but not proving it true: Bailey v. Hyde, 8 Id. 202. But see, to the contrary, McGee v. Sodusky, 20 Id. 251. Evidence in mitigation is not admissible where justification is pleaded, unless, through the plaintiff's fault, the defendant had cause to believe the charge to be true when he made it and pleaded justification: Larned v. Buffinton, 3 Am. Dec. 185. The principal case is relied on as establishing the doc.

trine that before the adoption of the code evidence tending to rebut malice, but not to prove the truth of the charge, was admissible in mitigation under the general issue in an action of slander: Purple v. Horton, 13 Wend. 25; Cooper v. Barber, 24 Id. 108; Veele v. Gray, 18 How. Pr. 566; S. C., 10 Abb. Pr. 6; Hager v. Tibbits, 2 Abb. Pr., N. S. 100; Bush v. Prosser, 13 Barb. 223; S. C., 11 N. Y. 355, 356; Dolerin v. Wilder, 34 How. Pr. 491; S. C., 7 Rob. 322; Campbell v. Butts, 3 N. Y. 175. The code, however, made evidence admissible in mitigation, even though it tended to prove the truth of the charge: Bush v. Prosser, 11 N. Y. 355, 356; and also made justification and mitigation pleadable together in the answer: Hager v. Tibbits, 2 Abb. Pr., N. S. 100, 101. In Snyder v. Andrews, 6 Barb. 56, Gilman v. Lowell is cited to the point that the truth of the charge can not be proved in an action of slander, unless it is pleaded or notice is given of such matter with the general issue.

PLAINTIFF'S CHARACTER, RANK, AND CONDITION, EVIDENCE OF.-As to the admissibility of evidence of the plaintiff's character, rank, and condition in life in an action of slander or libel, see Larned v. Buffinton, 3 Am. Dec. 185; Anthony v. Stephens, 13 Id. 497, and note; Douglass v. Tousey, 20 Id. 616, and note; McGee v. Sodusky, Id. 251; King v. Root, 21 Id. 102, and note. The principal case is relied on as authority for the admissibility of such evidence in Van Benschoten v. Yaple, 13 How. Pr. 101.

ADMISSIBILITY OF GENERAL REPORTS OF SIMILAR NATURE to the charge in slander, see the note to Anthony v. Stephens, 13 Am. Dec. 497. See, also, Schwartz v. Thomas, 1 Id. 479; Cook v. Barkley, 2 Id. 343; Easterwood v. Quin, 3 Id. 700; Treat v. Browning, 10 Id. 56; and Calloway v. Middleton, 12 Id. 409. The principal case is cited as authority against the admissibility of such evidence in Inman v. Foster, 8 Wend. 608.

MALICE IMPLIED IF WORDS ACTIONABLE PER SE.-See Estes v. Antrobus, 13 Am. Dec. 496.

LANE V. KING.

[8 WENDELL, 584.]

MORTGAGOR'S LESSEE IS NOT ENTITLED TO CROPS GROWING on the premises as against the mortgagee, under a lease subsequent to the mortgage. MORTGAGEE PURCHASING UNDER A FORECLOSURE MAY MAINTAIN TRESPASS against such lessee for taking such crops.

ERROR from the common pleas in an action of trespass for cutting and carrying away the rye on a certain farm, which action was originally brought by King, the defendant in error, against the plaintiff in error in a justice's court, and appealed therefrom to the common pleas, after a judgment in favor of the said King. It appeared at the trial that the premises had been mortgaged to the plaintiff below by one Lampman, in 1827; that in June, 1829, the defendant below, having knowledge of the mortgage, rented a portion of the premises of Lampman for two years, the tenant to be entitled to the grain thereon at the expiration of the lease; that the mortgage was

foreclosed in December, 1829, the defendant below not being made a party; and that the plaintiff became the purchaser at the sale in February, 1830, and put a tenant in possession. The defendant afterwards entered, and cut and removed the rye. The defendant had been warned by the plaintiff, in the fall of 1829, not to plant any crop. Verdict for the plaintiff, and a stipulation that a judgment should be entered thereon, if this court should be of opinion that the plaintiff was entitled to recover.

Adams and Van Vleck, for the plaintiff in error.

Van Dyck and Bronk, for the defendant in error.

By Court, SUTHERLAND, J. The question in this case is, whether the lessee of a mortgagor is enti led, as against the mortgagee, to the crops growing on the mortgaged premises at the time of the foreclosure and sale, the mortgagee having become the purchaser. In England, the mortgagee may sustain an action of ejectment against the mortgagor or any one claiming under him by title subsequent to the mortgage, without any notice to quit; they are considered mere tenants at will: Keech v, Hall, Doug. 21; Moss v. Gallimore, Id. 269; Pow. on Mort. 205, 206, c. 7. In this state, however, it has been held that a mortgagor is entitled to notice to quit before he can be treated as a trespasser, on the ground that there is an implied consent and agreement between him and the mortgagee, that the former may continue to occupy the premises: Jackson v. Loughead, 2 Johus. 75; Jackson v. Fuller, 4 Id. 215; McKircher v. Hawley, 16 Id. 289. A purchaser of the interest of the mortgagor, or a lessee under him, or any third person, stands upon the same footing here as in England, and is not entitled to notice to quit from the mortgagee. There is no privity of contract or estate between the mortgagee and such third person; as to him they are trespassers: 4 Johns. 215; 16 Id. 289; 20 Id. 61. The English doctrine, therefore, in relation to the rights of a mortgagee against a mortgagor, or his grantees or assignees, is entirely applicable to this case.

In Keech v. Hall, Doug. 21, already referred to, the mortgagee brought an action of ejectment against a tenant who claimed under a lease from the mortgagor, given after the mortgage, without the privity of the mortgagee. Lord Mansfield, in delivering the opinion of the court, said: "On full consideration, we are all clearly of opinion that there is no inference of fraud or concert against the mortgagee to prevent him from

considering the lessee of the mortgagor as a wrong-doer." The question turns upon the agreement between the mortgagor and mortgagee; when the mortgagor is left in possession, the true inference to be drawn is an agreement that he shall possess the premises at will in the strictest sense, and therefore no notice is ever given to quit, and he is not even entitled to reap the crop as other tenants at will are, because all are liable to the debt, on payment of which the mortgagee's title ceases. The mortgagor has no power, express or implied, to let leases not subject to every circumstance of the mortgage; the tenant stands exactly in the situation of the mortgagor.

This court, in McKircher v. Hawley, 16 Johns. 292, also held that the relation subsisting between the mortgagor and mortgagee, did not imply a right on the part of the mortgagor to lease. The mortgagor, therefore, in giving a lease, becomes as to the mortgagee a disseisor; ride, also, Jackson v. Hopkins, 18 Johns. 487; Dickenson v. Jackson, 6 Cow. 147; Woodfall, 237; and if during the disseisin he should cut down the grass, trees, or corn growing on the land, the disseisee, after re-entry, may have an action of trespass vi et armis against him for the trees, grass, or corn; for after re-entry, the law, as to the disseisor and his servants, supposes the freehold always to have continued in the disseisee, though perhaps trespass vi et armis would not lie against the lessee, for the fiction of law shall not by relation make him a wrong doer vi et armis, who comes in by color of title, because in fictione juris semper æquilas existat: Lifford's case, 11 Coke, 51. But though the lessee shall not be treated as a trespasser, still if he cuts the grass and trees, or sows the land, and cuts and carries away the crops, they may be recovered by the disseisee after re-entry; the re-entry by relation revests the property in him, as well for the emblements as the freehold, and equally against the feoffee or lessee of the disseisor as against the disseisor himself, though it will not, as against a person coming in by color of title, give him an action of trespass vi et armis: 11 Coke, 51; Dyer, 31, 173; Powell on Mort. 213, 214, c. 7. Mr. Powell observes, that as to emblements, there is a distinction between tenants who have particnlar estates that are uncertain, defeasible by the act of the parties, or by the act of God, and those who have particular estates uncertain-defeasible by a right paramount; for in the latter case, he that hath the right paramount, shall have the emblements. The mortgagee undoubtedly, as against the mortgagor and his grantee, has the paramount right. Mr.

Powell considers the right of mortgagee to emblements as against the lessee of the mortgagor, as necessarily resulting from the doctrine established by Lord Mansfield in Keech v. Hall, Doug. 21, that a mortgagor has no right to lease; he observes that he can see no ground on which the case of such lessee, as to emblements, can be distinguished from any other tenant under a tortious title; for if he be considered a wrongdoer as to his occupation of the premises, he can not be considered in a different character as to the emblements, nor can there be any ground to imply a consent to cultivate the property, when no implication is admitted of a consent to occupy it: Jacob's Law Dict., Emblements, 4 Rep. 21.

This reasoning appears to me to be conclusive. The plaintiff, therefore, according to the stipulation of the parties in the case, is entitled to judgment for forty dollars damages, and thirty dollars costs.

GROWING CROPS, RIGHT TO, ON FORECLOSURE SALE.-See Crews v. Pendleton, 19 Am. Dec. 750, and note. That the purchaser under such a sale is entitled to the crops, is held on the authority of the foregoing decision in Shepard v. Philbrick, 2 Denio, 175; Jewett v. Kenholtz, 16 Barb. 196; Gardner v. Finley, 19 Id. 321; Aldrich v. Reynolds, 1 Barb. Ch. 615; Sherman v. Willett, 42 N. Y. 150; Harris v. Frink, 49 Id. 31; Samson v. Rose, 65 Id. 429. As to the rights of purchasers at foreclosure sales generally, the case is referred to incidentally in Tifft v. Horton, 53 N. Y. 384.

PHILLIPS V. HALL.

[8 WENDELL, 610.}

LEVYING AN EXECUTION AND TAKING A RECEIPTOR CHANGE THE POSSES. SION of goods, in contemplation of law without an actual removal. ACTUAL FORCIBLE DISPOSSESSION IS UNNECESSARY TO MAINTAIN TRESPASS de bonis asportatis or trover, any unlawful interference or exercise of dominion with respect to the property by which the owner is damnified being sufficient.

TROVER AND TRESPASS ARE CONCURRENT REMEDIES for most illegal or tortious takings.

TRESPASS LIES For Levying on tHE GOODS OF A STRANGER and taking a
receiptor, though the goods are not removed and the receiptor permits
the owner to keep possession and dispose of them as his own.

OWNER HAVING INDEMNIFED, THE RECEIPTOR MAY RECOVER THE SUM EX-
PRESSED in the receipt as damages, in such a case.

RECEIPTOR LEAVING THE PARTY IN POSSESSION AND CONTROL of the goods
is liable as for gross negligence, if they are wasted or sold.

RECEIPTOR IS ESTOPPED FROM DENYING THE SHERIFF'S RIGHT to the goods, and can not set up title in a third person, except where they have been taken from him by act of law, or, perhaps, by force.