torn out of the books which contained the account of the defendant were torn out by the defendant, or by his act, it was not error to receive evidence of such destruction of the books, and to treat the same as bearing upon the motive of the defendant, if the destruction was by him, or caused to be done by him. Such seems to have been the theory upon which the evidence was received and dealt with by the judge in delivering the case to the jury. In effect, the jury were told that the evidence was insignificant and unimportant, unless the mutilation of the book took place by the acts or procurement of the defendant. With this qualification we see no error in receiving or dealing with the evidence in relation to the mutilation of the books.

4. When the witness O'Connor, book-keeper, was upon the stand, he detailed the incidents relating to the books, and facts and circumstances relating to the fire, and the direction received from the defendant in respect to the several items in the accounts, and conversations had with the defendant preceding the fire and shortly thereafter, and narrated some of the preparation made by the defendant to meet the adjusters and ascertain the extent of the loss, and that he burned certain invoices in the stove in the blacksmith shop under the direction of the defendant, and that the defendant told him he had "made up an inventory to settle with the insurance companies," and that the inventory made at the Messenger House "showed a loss of $20,000. He said if he could get $20,000 of the insurance men he would let the Springville men go to hell; he would not go to Springville." After this evidence was given, the witness was permitted, against the objection and exception of the defendant, to state that the defendant "was drinking some. He had a bottle here with him. Well, Conger carried a bottle, and every once and a while Mr. O'Neil would take a slug. The bottle was carried in Mr. Conger's overcoat pocket. I saw O'Neil drinking from that bottle at different times. He told me during the time he was making his adjustment that he had showed the loss by his inventory of something over $20,000.” In Linsday v. People, 63 N. Y. 154, Judge ALLEN says: "The acts and declarations of a party are evidence against him, and whether they tend to fix a crime upon him is for the jury." In Greenfield v. People, 85 N. Y. 85, Judge MILLER says: "The acts and conduct of a party at or about the time when he is charged to have committed a crime are always received as evidence of a guilty mind; and while, in weighing such evidence, ordinary caution is required, such inferences are to be drawn from them as experience indicates is warranted. And the demeanor of a prisoner at the time of his arrest, or soon after the commission of the crime, or upon being charged with the offense, is a proper subject of consideration in determining the question of guilt. Such indications, however, are by no means conclusive, and must depend greatly upon the mental characteristics of the individual." In Levy v. People, 80 N. Y. 335, it was said that the conduct of the prisoner after the fire was admissible. In speaking thereof Judge FOLGER says: "It was an act in the prisoner's life, at the time of the occurrence with guilty participation in which he was charged, and it was competent to be shown to the jury. * * But after-acts of his might be circumstances, according to the nature of them, to show guilty knowledge of purpose and inducement thereto before the fire." We are therefore of the opinion that the verdict ought not to be disturbed because the witness O'Connor testified that at the time of the occurrence of the acts of the defendant which he had detailed the witness was permitted to state that the defendant “was drinking some."

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5. Much criticism and complaint are made by the defendant of the charge delivered by the trial judge to the jury. In the third sentence in the charge we find the following language: "Upon you, as jurors, the chief weight rests, because you are the exclusive judges and final judges of all questions of fact." In substance and in spirit the same language was used during the delivery of the charge several times by the trial judge. After commenting upon the sur

roundings and evidence relating to the motive of the defendant, the judge says: "Those are the surroundings upon his motive, and I leave it to you to say whether that was any motive that would tend to impel the man on to firing that building in the hope that the whole building would be destroyed, and that all evidence as to the amount and value of the goods that were destroyed with it, so the insurance companies would be obliged to depend on his representations, and what he would swear to as to the goods that were there; it is a question for you,-a question of fact,--not only as to whether the motive existed there, but as to what weight the motive has; whether you think, along with the other circumstances in the case, it is satisfactory one in your minds in judging of the question of this man's guilt." Again, he says: "I leave, then, this question entirely with you, to give such weight to them as the circumstances and the surroundings of this man under the circumstances as you think they are entitled to in determining the question of this man's probable guilt." The same intimation was made again at folio 807; also folio 338. Again, in reference to declarations made by the defendant, the trial judge remarks: "If it is true,-I can't say it is so; I can't say to a certainty, --you must take it and judge for of it all the way through as best you can, and you ought not to make use of arbitrary conclusions either way in relation to it, but weigh it carefully to see whether it does address itself to your judgment." Again, in speaking of the force and credit to be given to testimony from certain witnesses, the trial judge remarks: "If you can't find anything, you have the right to give it full credit, and hold that they testified truthfully in relation to it. Whether you see anything in the case that tends to throw discredit upon it is entirely for you." Again, in commenting upon the effect to be given to the testimony of the defendant as a witness, the trial judge adds: "You are the exclusive judges of all this. The court has no right to say to you that you ought to decide what your duty is. The court must dispose of the questions of law that arise in the case, and is responsible for that." Again, he adds: "I leave the case wholly with you. Go at it deliberately, with the idea singly to determination of justice, weighing the evidence, and as it strikes your mind and impresses you that you believe if it fairly weighed effects your judgment that you believe, it is the true criterion, whatever makes you believe from the evidence is true state of things is the true criterion."

At the close of the charge very numerous requests were preferred by the defendant, and several exceptions were taken to expressions used by the court in delivering the body of the charge. In response, the court several times remarked: "I do say to the jury that I will leave that entirely with them to say what inference would be properly drawn,-what weight to give it." In response to an exception “to that portion of the charge where the jury are told that the proof and circumstances, as detailed by Fitzgeralds and Duffy and O'Connor, are terribly damaging to the defendant," the court replied: "The jury may so find; they have the right to." And when the defendant's counsel asked the court to charge "that a conviction for crime cannot be had upon motive alone," the court promptly replied: "Certainly not. I so charge. And when the defendant's counsel followed that by a statement: "That motives only strengthen the circumstances which point to the guilt of the defendant," the court again replied: "I have intended to so charge, and I repeat it." And when the defendant's counsel asked the court to "call the attention of the jury to the further testimony of Smith, that he saw O'Neil loading crating on a hand car," the court promptly replied: "He did so testify,-loading crating sticks on a hand car. I don't claim to have alluded to many of the circumstances and surroundings, but such as seemed most prominent to the court to call their attention to, leaving it to your common sense, as it were, to call to mind any and all circumstances, whether it addresses itself to your judgment in forming a conclusion." In Jackson v.

Packard, 6 Wend. 415, an observation of the judge during the delivery of his charge upon the evidence was the subject of comment, and in referring thereto Judge SUTHERLAND says: "It was nothing more than the expression of the opinion of the judge upon that point; but it in no respect assumed to take from the jury the right to judge for themselves upon the matter." In Crandal v. Bradley, 7 Wend. 312, it was said that certain comments made by the court to the jury were "merely intended to express an opinion upon the weight of evidence; not to take the question from the jury," and therefore no error was committed. In Bruce v Westervelt, 2 E. D. Smith, 441, it was said, viz.: "In submitting to a jury a question of fact, a judge may add the expression of his own opinion in relation thereto, upon the testimony; and such an exercise of his discretion forms no ground for exception." When the Code of Criminal Procedure was adopted, a new statutory provision was made bearing upon the question here involved, and in section 420 of that Code, it is provided: "In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict; and must, if requested, in addition to what it may deem its duty to say, inform the jury that they are the exclusive judges of all questions of fact." In the multitude of requests that were submitted by the defendant, there was none that specifically requested the question of fact to be left to the jury, which the judge refused. While some of the passages used in the body of the charge may have been hastily framed, they resulted from an immature consideration of the evidence, and do not challenge admiration as the most perspicuous and approved comments upon testimony. We must bear in mind that in the fatigues and excitements of trial at nisi, the most careful and approved diction is not to be expected. We think the language used in Sindram v. People, 88 N. Y. 196, when applied to the charge under consideration, warrants the court in refusing to interfere with the verdict. It was there said: "The comments of the trial court in its charge upon the testimony are not ordinarily the subject of legal exception, so long as the questions of fact are left with the jury, with instructions that they are the sole judges thereof." We think the trial judge sufficiently informed the jury that they were the exclusive judges of the facts, and that it was their exclusive province to pass upon the testimony bearing upon the questions relating to the guilt or innocence of the defendant; that the body of the charge and the qualifications made in response to requests confided the important questions of fact to the jury, and followed the rule laid down in the case just cited, as well as the rule laid down in section 420 of the Code of Criminal Procedure. We are therefore disinclined to heed the criticisms made upon the charge, found in the pointed assault made thereon in the brief of the appellant. Whether the defendant was guilty of the crime charged in the indictment or not, upon all of the evidence produced at the trial, was a question for the jury. We are of the opinion that the evidence was sufficient to sustain their finding. Accepting their verdict as being sustained by the evidence, we are constrained to allow it to stand, notwithstanding some passages are found in the charge which we are not inclined to commend as precedents. Order and judgment affirmed, and proceedings remitted to the court of oyer and terminer of Cortland county, with instructions to proceed thereon. All concur.

BRUNSWICK-BALKE-COLLENDER Co. v. STEVENSON.

(Supreme Court, General Term, First Department. January 28, 1889.)

CHATTEL MORTGAGES-VALIDITY-PROPERTY NOT IN POSSESSION.

A chattel mortgage of property not in possession of the mortgagor at the time of executing the mortgage, and not delivered to him until afterwards, is void. Appeal from circuit court, New York county.

Action by the Brunswick-Balke-Collender Company against David Stevenson. Judgment for plaintiff, and defendant appeals.

Argued before VAN BRUNT, P. J., and BRADY and MACOMBER, JJ. McAdam & McCrea, for appellant. Doherty, Durnin & Hendrick, for respondent.

BRADY, J. This is an action of claim and delivery. The right of the plaintiff to recover rests upon a chattel mortgage executed by one David B. Dillon, and bearing date June 7, 1886. The defendant's claim rests upon a mortgage executed by the same person upon the same property, dated May 6, 1886. The execution of both these instruments was admitted upon the trial, and it was further conceded that the mortgage given to the plaintiff was to secure the payment of the balance of the purchase price of the mortgaged property, and that the mortgage was duly filed on the 8th of June, in the register's office. The issue upon the trial was as to the time of the delivery of the articles mortgaged; the defendant insisting, as the result of the'evidence given, on his belief that they were in Dillon's business place on the 4th and 5th of May, 1886, while the evidence on behalf of the plaintiff was that they were not delivered, nor was any part of them, until the 8th of May, and the whole between the 8th and 14th of May, and in detachments. The learned justice charged that if the property was in the possession of Dillon by delivery to him on or before the 6th of May, and before the mortgage given to the defendant was executed by him, then the defendant had a valid security, and had the right to foreclose the mortgage as he did, and no recovery could be had against him. If, on the other hand, the goods were not delivered until the 8th of May, then the subsequent security given to the plaintiff was valid, and its right to recover absolute. The question presented is as to the propriety of the charge in respect to the issue stated. The rule in reference to the validity of a mortgage upon property not in possession is correctly stated by Jones, Chat. Mortg. § 138. It is as follows: "At common law a mortgage can operate only on property actually in existence at the time of giving the mortgage, and then actually belonging to the mortgagor, or potentially belonging to him as an incident to other property then in existence and belonging to him. A mortgage of goods which the mortgagor does not own at the time of making the mortgage, though he might afterwards acquire them, is void in respect to such goods as against subsequent purchasers or attaching creditors." These propositions are maintained by a series of cases cited, including Gardner v. McEwen, 19 N. Y. 123; Otis v. Sill, 8 Barb. 102; Trust Co. v. Improvement Co., 27 Hun, 89, in our own state. Mr. Justice DYKMAN, in Trust Co. v. Improvement Co., says that no principle known to our law would allow a chattel mortgage to operate on property not in existence, either actual or potential; and that upon authority the case stood no differently; and he proceeds to demonstrate that by the citation of authorities. There does not appear to be any doubt of the proposition as stated and sustained by authority, some of the cases being herein expressly referred to sustaining it. "The same rule holds good," it is also said, (Jones, supra, § 139,) "even where a mortgage is made to secure the purchase money of goods, a part of which the mortgagee has not at the time delivered to the mortgagor, proposition which seems to be sustained by the case of Pettis v. Kellogg, 7 Cush. 456. The potential interest to which reference is made by this learned author is illustrated by the observation of Chief Justice HOBART in Grantham v. Hawley, Hob. 132. He said: "Land is the mother and root of all fruits. Therefore he that hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant. A person may grant all the tithe wool that he shall have in such a year, yet perhaps he shall have none; but a man cannot grant all the wool that he shall grow upon his sheep that he shall buy hereafter, for there he hath it neither actually nor

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potentially." In this case, the property which was mortgaged to the plaintiff not having been delivered, and therefore not being in the possession of the mortgagor at the time of the execution of the mortgage to the defendant, was not his property, either actually or potentially, within the meaning of the term, and therefore he could not dispose of it, under well-settled principles, by a mortgage. The right of the plaintiff to recover therefore depended upon the finding of the jury as to the time of the delivery of the articles mortgaged. That was the real and substantial issue submitted to them, and, having found for the plaintiff, they have determined that the delivery was subsequent to the mortgage executed in favor of the defendant. For these reasons the judgment should be affirmed. All concur.

FRIEDMANN v. PLATT et al.

(Supreme Court, General Term, First Department. January 28, 1889.) INTERPLEADER-WHEN GRANTED.

Defendants became custodians of a certain sum of money, which they were directed to pay to one R. in case the title to certain realty held by R. under a contract of purchase which had been assigned to plaintiff should prove perfect; otherwise the money was to be paid to plaintiff. On a dispute arising as to whether a perfect title had been tendered, both R. and plaintiff demanded the money, and plaintiff brought suit therefor. Defendants alleged that they understood that the money belonged to R., being paid to her by plaintiff on the assignment of the contract, and being left with defendants at plaintiff's request, to secure him in case the title proved defective. Held, that an order substituting R. in place of defendants was properly granted, there being no evidence of collusion between defendants and R. Appeal from special term, New York county.

Action by Christian G. Friedmann against James N. Platt and others. On defendants' motion one Rachel Rosenberg was substituted as defendant. Plaintiff appeals.

Argued before VAN BRUNT, P. J., and DANIELS and BARTLETT, JJ.

Christian G. Moritz, for appellant. Platt & Bowers, (John M. Bowers, of counsel,) for respondents.

BARTLETT, J. There is absolutely no merit in this appeal. The defendants are attorneys and counselors at law. They became the custodians of $2,000, which they were directed to pay to one Rachel Rosenberg if the title to certain real estate held by her under a contract of purchase, which contract had been assigned to the plaintiff, should prove to be perfect, according to the terms of such contract; but, if the title was not perfect, then the said sum of $2,000 was to be paid to the plaintiff or his assigns. A dispute arose as to whether a good title under this contract had been tendered or not, and the money was demanded of the defendants by Mrs. Rosenberg on the one hand, and by the plaintiff on the other. The plaintiff thereupon brought suit against defendants to recover the $2,000, and the defendants, who make no claim to the money, moved for an order of interpleader substituting Mrs. Rosenberg in their place, which was granted. There is some dispute upon the motion papers as to whether the sum of $2,000 was deposited with the defendants by Mrs. Rosenberg or by the plaintiff. That the money was paid by the check of the plaintiff, there is no doubt; but the defendants allege that they understood that the money belonged to Mrs. Rosenberg, being paid to her by the plaintiff upon the assignment of her contract, and being left by her with the defendants at the request of the plaintiff, in order to secure him in the event of the title proving defective. I think that such was the real character of the transaction. The defendants stood indifferent as between both claimants to the fund. There was no evidence which would have justified the court in holding that there was any collusion between the defendants and Mrs. Rosenberg. The order of interpleader was properly granted, and should be affirmed, with costs and disbursements. All concur.