technically erroneous, is no ground for a new trial. Code of Crim. Pro., 542, 186.

Judgment of General Term, affirming judgment of conviction, affirmed.

concur.

SURETIES. SHERIFFS.

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

Bernard Reilly, respt., v. Rufus Dodge et al., applts.

Decided Dec. 31, 1886.

A bond given by a deputy sheriff to the sheriff conditioned for the faithful performance of his duty by the former and for the indemnity of the sheriff against the consequences of any improper act of the deputy speaks only from the time of its delivery, and the sureties thereon are not liable for the consequences of any thing done by the deputy before that time. The delivery of such a bond is

afterward sued for this levy and sale by a third party who claimed to be the owner of the property and a recovery was had in the suit against the sheriff, who, having paid the same, brought this suit on the bond against Dodge and his sureties, S. and D. From the judgment in favor of the sheriff defendant took this appeal.

Louis M. Doscher, for applts.
P. Mitchell, for respt.

Held, That the well established rule is that such a bond speaks only from its delivery. That the delivery is presumptively at its date, but the time of the actual

of actual delivery may be shown, and, when it is so shown, the date of the bond becomes unimportant.

Plaintiff, who was the sheriff of the city and county of N. Y., appointed defendant Dodge one of his deputies on Jan. 1, 1877. He gave a bond for the faithful discharge of his duties, but toward the end of that year one of the sureties on that bond refused to be longer liable upon it and a new bond was required by the sheriff. On Jan. 30, 1878, a new bond was executed by defendant Dodge and S. as surety, and Feb. 5, 1878, the bond was executed by D., the other surety, and delivered to the sheriff. The bond was dated Dec. 1, 1877.

it is shown, the date of the bond becomes unimportant.

That the liability for the acts of Dodge under the levy accrued by the sale several weeks before the delivery of this bond in suit. That it was not the intention of the sureties to become liable for past transactions and the language of the bond does not subject them to any such liability. 20 N. Y., 336; 10 Hun, 431; 66 N. Y., 434; 81 id., 593.

That the case is not to be confounded with those in which a bond or undertaking has been given to indemnify the sheriff for proceeding with a levy previously made, in which case the surrounding circumstances show the inten

tion to indemnify against a liability previously incurred. 43 N. Y., 464.

Judgment reversed and new trial ordered.

guaranteeing to plaintiffs the right to purchase, sale and deal in their harrow, and to indemnify and defend them from all prosecutions for so doing by any person claim

INDEMNITY. CORPORA

TIONS.

N. Y. COURT OF APPEALS. Childs et al., respts., v. The Harris Mfg. Co., applt.

Decided March 1, 1887. Defendant, a Wisconsin corporation, upon a sale of goods to plaintiffs, executed and delivered an agreement to indemnify and defend them from all prosecutions

for dealing in the goods by any person claiming an infringement on any patent. Suit was brought in this State against plaintiffs and notice given to defendant, but the latter failed to defend and judgment was entered against plaintiffs. Held, That the cause of action on the agreement arose in this State, although the agreement was made in Wisconsin, and that service in this State on a person who had been elected a director of defendant and appeared by defendant's records to be such was sufficient.

This action was brought upon a bond of indemnity given by defendant to plaintiffs. Defendant is a corporation created under the laws of Wisconsin, has its office in that State, where it is engaged in the manufacture and sale of harrows, some of which were bought by plaintiffs, who are dealers in agricultural implements. Some Some question arose as to whether the machine was an infringement upon letters patent issued to other parties, and upon a consideration deemed sufficient, defendant executed a writing in Wisconsin

any patent, provided notice be given of such proceeding and they be allowed to take charge of the case. An action was commenced for this alleged cause against plaintiffs, and they at once notified defendants and required them to take charge of its defense. They failed to do so and judgment went against these plaintiffs for $3,154.45, payment of which was enforced by execution. They thereupon

issued a summons as in the Supreme Court of this State, and served it upon one C. in the city of New York, upon the assumption that he was a director of the corporation. The evidence tended to show that C. was a director of Defenddefendant by election.

ant's records so declare. Defendant moved to set it aside upon the grounds, (1) That defendant is a foreign corporation, and the service was not upon its president, treasurer or secretary, or otherwise its representative for that purpose. (2) That the corporation has no property within this State. (3) That plaintiff's cause of action did not arise within it. The motion was denied at Special. and General Terms, and this appeal was taken.

Louis Marshall, for applt. H. J. Cookingham, for respts. Held, No error. It is enough if the cause of action arose in this State and C. was in fact one of

defendant's directors. Code, § 432, subd. 3. The cause of action accrued when defendant failed to perform its contract, and by reason of its failure plaintiff sustained a loss. These events occurred in this State, plaintiffs were sued here, and here if any where defendants were required to defend. It is immaterial that the contract to indemnify was made in Wisconsin: its obligation was to be discharged wherever plaintiffs were vexed by litigation. Plaintiffs were bound to give notice wherever they could find defendant, and when they performed this condition it became a fact in the case, but itself gave no cause of action, nor did one then exist. Its object was to set defendant in motion, and except for it there could have been no default. The notice called for performance that was regulated by the proceedings in this State where plaintiffs were sued. Defendant's undertaking was to defend them in that suit, and the cause of action arose when for want of a defense judgment went against them, and it arose at the place where that judgment was recovered.

Also held, That it may reasonably be held that C. was a director in fact of defendant. The declaration of the records of defendant that C. was a director is sufficient for the purposes of the motion now made by it.

Order of General Term, affirming order denying motion to set aside service of summons, affirmed.

Opinion by Danforth, J. All concur, except Ruger, Ch. J., not voting.

COMPOSITION DEED.

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

The Continental National Bank, respt., v. Herrmann Koehler, applt.

Decided Dec. 31, 1886.

The firm of K. & K. being in failing circumstances procured the signature of their creditors to a composition agreement in the following form: "We who have hereunto subscribed our names and affixed our seals, creditors of the firm of K. & K., * * * agree to receive fifty cents on a dollar in full discharge of the several debts owing by K. & K. to us." Held, That it was not necessary that all the creditors of K. & K. should sign said agreement in order to render it binding upon those who had executed it, and that the fact that certain of the creditors of K. & K. who had signed said agreement had received a greater amount of their claims than the fifty per cent. agreed upon would not entitle another creditor who had also signed said agreement to maintain an action to collect more than fifty per cent. of his claim.

Action against defendant as indorser of two promissory notes made by the firm of K. & K. It appeared that the firm of K. & K. when in failing circumstances had procured the signature of their creditors to a composition agreement in the following form: "We who have hereunto subscribed our names and affixed our seals, creditors of the firm of K. & K.,

*

* *

agree to receive fifty cents on a dollar as full discharge of the several debts owing by K. & K. to us." By this agreement the fifty per cent. of their claims to be received by the creditors signing it was to be paid in notes of K. & K. maturing at different intervals.

The

Plaintiff was a creditor of K. & K. and its president had signed this agreement in its name. defense relied upon was that plaintiff, in fraud of the other creditors and as a condition of signing said agreement, had compelled K. & K. to execute to it notes for the full amount of its claim instead of for fifty per cent. only.

It was claimed by plaintiff that the composition agreement was not binding upon it because there were some few creditors of K. & K. in small amounts who had not signed it, and because it appeared that K. &. K. had paid certain of their creditors who had signed said agreement the fifty per cent. agreed upon in cash and not by giving their notes, and because plaintiff president was not authorized to bind the bank by signing said agreement.

to plaintiff from the payment of certain of the other creditors in cash, for if such creditors had endeavored to take advantage of the situation of the firm and thereby secure more favorable terms than the agreement provided for, it would not invalidate the agreement itself and release plaintiff from the obligation to perform it, but would be a fraud upon the other creditors which the law would not sanction or maintain.

That the objection to the authority of the president of the bank to subscribe the composition was not tenable. That the business was done at its banking office, and through the agreement then made. expressed in part by the composition the bank received these notes, and by endeavoring to collect them it had sanctioned the act of its officers in obtaining them; and

John L. Cadwallader, for respt. Held, That the composition agreement was not drawn in such a manner as to require all the creditors of the firm to execute or become parties to it. That its effect was limited to those persons who should become parties to it, and that no portion of the instrument either by express words or fair implication made it indispensable to its validity that all the small creditors should become parties to it, and in the form in which it was made it would not be invalid simply because some small amounts had not become bound in the composition. 62 N. Y., 105.

That no harm or prejudice came

to do that and at the same time repudiate the obligation through which this end was secured.

Judgment reversed and new trial ordered.

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

an action in replevin for goods obtained by fraud where the action on contract was regularly discontinued before the bringing of the action in replevin and no property or benefit was secured thereby.

It is not to be inferred, as matter of law,

that one who is guilty of fraudulently disposing of property was also guilty of fraud in its acquisition, and knowledge of the fact cannot be imputed to one who has no other means of information. Affirming S. C., 23 W. Dig., 326.

This action was brought for the recovery of personal property. The complaint contained the usual allegations required in such actions. The answer of defendant S. admitted the value of the goods to be as stated, denied all the averments of the complaint, and set up that as sheriff of Kings County he took the property by virtue of sundry attachments duly issued to him against the property of defendant M. in favor of plaintiff. M.'s answer alleged that the property was purchased by him from plaintiff, and that before commencement of this action plaintiff sued for the price and obtained a warrant of attachment, thereby affirming the contract of sale. Upon the trial plaintiff offered testimony tending to show that M. procured the goods fraudulently, and produced and offered to return the notes given therefor. They were refused. Defendant S. then put in evidence the attachment issued to him in favor of plaintiff, which recited a cause of action on contract and stated as ground for the attachment that "defendant has removed and disposed of his property with intent to defraud his creditors," and also the affidavits upon which the

charge was founded. The suit was commenced and the attachment levied upon real and personal property of defendant M. on Dec. 16, 1884. It was proved that the attachment suit was discontinued by an order of the court made Dec. 27, on notice to defendant, and the present action commenced on Dec. 29, 1884. It was conceded that nothing was obtained by plaintiff under the attachment. Defendants then moved for a dismissal of the complaint on the ground that the proof showed that on Dec. 16, 1884, plaintiff, with full knowledge of the fraud which had been perpetrated upon him by M., and the right to rescind said sale and reclaim said goods, or affirm the sale and recover the value therefor, had elected to affirm the sale of the goods obtained by M. and sue upon the contract for the value thereof, and having so elected and obtained the benefit of a personal remedy such election was final and conclusive, and vested M. with the title of said property. By consent of the parties the court reserved its decision on the question of law thus raised, and submitted the case to the jury to find on the question of fact as to whether M. had obtained possession of the goods fraudulently and with the preconceived intent not to pay therefor. The jury found for plaintiff. The court subsequently decided the point reserved in favor of defendant, set aside the verdict, dismissed the complaint, and awarded judgment in favor of defendant S. for a return of the property. Upon appeal by plaintiff the General