ASSIGNMENT FOR CRED

ITORS.

vision was then made that no part of the surplus due one partner shall be applied to the other's

TERM. THIRD DEPT. Nathan Becker, applt., v. Jacob Leonard, respt.

Decided Nov., 1886.

An assignment for benefit of creditors stated that "the parties of the first part were indebted," etc.; it continued: "the parties of the first part do grant *

*

* all

is whether individual funds of Peter W. Bain passed to the assignee. It was held below that it did.

G. W. Miller, for applt.
Hungerford & Hotaling, for

respt.

Held, That the money passed

* *

* in

of the parties of the first part
trust to sell, etc., * * * and pay, first,
all the debts, etc., of the parties of the
first part as such copartners, etc.; second,
all the private and individual debts of
the parties of the first part," provided
the individual debts of each of said par-

ties does not exceed his portion of the
surplus. Held, That the individual prop-
erty of the assignors passed to the as-
signee.

In Jan., 1876, Peter W. and Wm. H. Bain, copartners under the name of P. W. Bain & Son, made a general assignment for benefit of creditors to V. H. Youngman. This instrument recited that "the parties of the first part were indebted," etc. (not the copartnership alone); it continued: "the parties of the first part do grant -*- ** all and singular the real and personal estate of the parties of the first part * * * in trust to sell, etc., * * -*- and pay, first, all the debts, etc., of the parties of the first part as such copartners, etc.; second, all the private and individual debts of the parties of the first part * provided the respective amounts of the individual debts of each of the said parties does not exceed his portion of the surplus. ProPro

* *

ment contemplated the appropriation of all the partnership and individual property of each partner, first, to the payment of the partnership debts, and second, of the surplus, if any, due each partner, to the payment of his individual debts. 35 L. T., N. S., 502; 21 Kans., 250; 30 Am., 430; 3 Gray, 539. The assignment is not made fraudulent against the individual creditors of either partner because his individual property is appropriated to pay partnership debts. Each individual partner is individually liable for partnership debts, and so long as he has the disposing power over his individual property he can apply it for that purpose. 20 How., 121; 11 Barb., 237. It is the appropriation of firm property to pay individual debts of the partners which is regarded as fraudulent against the firm creditors. 21 N. Y., 287; 17 id., 300; 3 Barb. Ch., 46.

The assignee is not a party here, but that is not material. Plaintiff is an individual judgment creditor of P. W. Bain and brings his action against defendant, to whom Bain had given the money in suit

Vol. 25-No. 15.

before the failure to keep it from his creditors. Defendant has actually paid the money to the assignee. In 97 N. Y., 105, the assignee was made a party, but did not answer, and so confessed he had no title to assert against the judgment creditor. Yet the court held that the rights of the creditors could not be varied by the assinee at his pleasure, and that the title was in him for the benefit of all the creditors.

Judgment affirmed.

Opinion by Landon, J.; Learned, P.J., and Bockes, J., concur.

CONTRACT. SALE. EVI

DENCE.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

Charles Van Fleet, respt., v. William S. Ketcham, applt.

Decided Dec., 1886.

An agreement to work a farm on shares creates the relation of master and servant or principal and agent between the parties thereto, and not that of landlord and tenant.

The fact that a vendor charged the goods sold on his books to the agent is not coL clusive as to the question to whom credit was given; but he may explain his system of book-keeping, and show that credit was intended to be given to the principal,

Appeal from judgment of County Court, entered on verdict, and from order denying motion for a new trial on the minutes.

Action originally brought in Justice's Court to recover the amount of a feed bill, and appealed to County Court where a new trial was had.

Defendant resided in New Jersey and owned a farm in Orange County in this State. In Dec., 1880, he entered into a written. agreement with one B., by which the latter agreed to operate and work said farm, care for cattle, etc., and defendant agreed to give said B. the use of the house thereon and half the products of the farm, the contract to run for ten years from April 1, 1881.

Plaintiff testified that in Sept., 1883, B. negotiated with him for some feed, telling him to send the bill to defendant, who would send a check; that after he had delivered part of the feed he saw defendant, who said that if he would let the bill run another month he would pay it or pay part of it.

Defendant claimed that what he said was that he would help B.

The court held and charged that the agreement did not create the relation of landlord and tenant, but that of master and servant; that it was not a lease.

W. F. O'Neill, for applt. William Vanamee, for respt. Held, No error. That the agreement created the relation of master and servant or principal and agent between defendant and B. 1 Hill, 234; 39 N. Y., 129. There is some evidence in the case to show that defendant specially authorized B. to make the purchase and plaintiff to deliver the goods. The jury found from all the facts that defendant was the principal, and the evidence is abundant to sustain the finding.

Plaintiff charged the goods on his books to B. He was allowed,

under objection, to testify that where his customers owned more than one farm it was his custom to charge whatever they got to the man that was working the farm.

Held, That the fact that the goods were charged to B. is not conclusive against plaintiff's right to recover. The court will look at all the surrounding circumstances with a view to ascertain the intent of the parties. That plaintiff intended to hold defendant, the sole owner of the farm and stock, liable for the goods seems reasonably clear from the evidence, and the jury have so found. There is also proof going to show that defendant, with a full knowledge that plaintiff was delivering feed to B. upon his, defendant's, credit, ratified such deliveries, and "promised to pay if plaintiff would let the bill run another month."

Also held, That it was competent for plaintiff to explain his system of book-keeping and show why he made the charge to B. instead of to defendant. Plaintiff was not endeavoring to prove a custom, but only to explain his own book. 9 Daly, 198; 44 N. Y., 349; 68 id., 400.

Judgment affirmed, with costs. Opinion by Pratt, J.; Barnard, P.J., and Dykman, J., concur.

DIVORCE. CONFESSIONS.

In an action for divorce to which defendant makes no defense, the confessions of defendant are always admissible in evidence, but before granting a decree based upon such confessions the court will require such corroboration thereof as to remove all suspicion of collusion, and when that is satisfactorily done the confessions become a sufficient basis for a judgment of divorce.

Action for divorce to which defendant made no defense. It appeared that plaintiff's suspicions had been roused by certain letters addressed to defendant which he had intercepted and that upon charging defendant with her misconduct she had confessed her guilt and plaintiff had ceased to cohabit with her, and she had returned to her parents in Cuba where she continued to reside; that after the separation defendant had written to plaintiff a full confession of her guilt and thrown herself upon his mercy; that the summons was served upon defendant in Cuba pursuant to an order authorizing such service by one W., to whom were given defendant's written confession and the intercepted letters; that at the time of said service W. had exhibited said confession and letters to defendant and she had acknowledged their authenticity and stated that the confession was true; that defendant then gave W. an additional written confession acknowledging her guilt as stated in her

TERM. FIRST DEPT.

Thomas I. Madge, applt., v. Jo

sepha Madge.

Decided Dec. 31, 1886.

collusion with defendant.

The Special Term denied a decree of divorce upon the ground that the confessions of defendant were not sufficiently corroborated.

Held, That the confessions of defendant in such an action are always admissible in evidence, but to avoid the danger of collusion the court before granting the decree will require such corroboration of the confessions as to remove all suspicion of collusion. That when that is satisfactorily done. the confessions become a sufficient basis for a judgment of divorce. 2 Penn., 332; 2 Bishop, § 248; 11 Pick., 461; 11 Jurist (Eng.), 893; L. R., 1 P. & D., 29; 45 L. J. Rep., P. & D., 43.

That in this case the competency of the confessions was undoubted. That the circumstances under which they were made tended strongly to remove all suspicion of collusion. Plaintiff had already separated himself from his wife on suspicion of her infidelity caused by the letters he had intercepted. He had presented them to her and she had acknowledged them as letters addressed to her by her paramour, and afterward she voluntarily wrote and sent to him a confession in detail of her guilt. Long after her return to her parents in Cuba she repeated her confession to W. and acknowledged the genuineness of the correspondence between herself and her companion in guilt. The correspondence itself was abundantly corroboratory of her confession and the letters were sufficiently proved to admit them in evidence against her.

That, therefore, there was in the case undoubted proof that the con

were clear and distinct; that they were sincere and not collusive; and they were corroborated by letters of the guilty parties.

That judgment should have been rendered in favor of plaintiff. Order reversed and judgment of divorce awarded.

Opinion by Davis, P.J.; Brady and Daniels, JJ., concur.

JURISDICTION. JUDGMENT. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

Charles P. Berdell, applt., v. Eliza W. Parkhurst, respt.

Charles P. Berdell, applt., v. James W. Hoyt, respt.

Decided Dec., 1886.

The Supreme Court has jurisdiction to set aside a satisfaction and reinstate a judgment under an agreement by the parties to that effect.

Appeal from order denying motion to vacate order setting aside satisfaction of judgments and reinstating said judgments.

Defendants in the above entitled actions having recovered judg ments for costs against plaintiff, and he being apprehensive that execution against his person would be issued thereon, entered into a written agreement with defendants' attorney whereby it was agreed that said judgments should be satisfied, and that in consideration thereof plaintiff would give said attorney information before Feb. 1, 1883, such as would enable him to collect upon any judgment under his

control against plaintiff's father an amount of money not less than $7,000, said sum to be divided between the creditor and plaintiff and the latter's share to be applied upon the aforesaid judgments. It was further agreed that if plaintiff failed to give such information before Feb. 1, 1883, the satisfaction of the judgments should be cancelled and vacated, and that an order, without notice to plaintiff, vacating said satisfaction and restoring said judgments so that they should have the same force and effect as if the satisfaction had never been given, might be granted by the Special Term on affidavit that plaintiff had failed to give said information.

Defendant's attorney had in his hands for foreclosure three mortgages against plaintiff's father. At the time of making the agree ment the satisfactions were delivered, and about Feb. 1st plaintiff informed said attorney that there was a claim pending against his father which if established would antedate the mortgages; that his father had documentary proof that would defeat said claim | and was willing to produce it, and that it was necessary for said attorney to try the case for his father. Defendants did try the case, but it resulted in defeat. No other information was ever given by plaintiff, and no money has been collected from plaintiff's father.

On this state of facts defendants' attorney made the affidavit specified in the agreement and procured an order setting aside the

The only ques

Held, No error. tion raised on this appeal is, whether the court had jurisdiction to set aside a satisfaction and reinstate a judgment under an agreement by the parties to that effect. The case of Hatch v. Central Nat. Bk., 78 N. Y., 487, is a direct authority upon this question. That case holds that it is within the discretion of the court after satisfaction of a judgment to vacate it in furtherance of justice. It is one of the inherent powers of the court to control its own judgments in aid of justice.

That the court had jurisdiction cannot be questioned, and that the power was properly exercised in this instance is equally plain.

Order affirmed, with costs.

Opinion by Pratt, J.; Barnard, P.J., and Dykman, J., concur.

CONSTITUTIONAL LAW. JUSTICE OF THE PEACE. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

In re application of Henry M. Elliott for mandamus.

Decided Dec., 1886.

Chapter 166, Laws of 1875, is not unconstitutional.

A justice of the peace whose term would

have expired Dec. 31, 1886, resigned, and