« ForrigeFortsett »
as collateral so that he could obtain and sell the goods, and thus by concentrating the control of all the goods in one person prevent loss. This arrangement was carried out and defendant paid the duties upon the goods out of the funds in his hands as assignee of H. & S., and sold the goods. Heli, That in accounting to plaintiffs defendant was entitled to deduct from the price realized for the goods for which they had held warehouse receipts the amount of duties thereon, and that said duties were not a charge upon the general funds of the assigned estate.
- Dean et al. v. Thurber, 198. 6. A surviving partner may make a general
assignment for the benefit of creditors and include in it the property of the preceding firm, and he may also in that manner appropriate his own individual property, as well as that of the firm, to the payment of the partnership debts. –
Haynes et al. v. Brooks et al., 329. 7. A provision contained in such an assign
ment directing the assignee to pay the debts existing against the assignor as the survivor of the preceding firm is equival. ent to a direction to pay the individual
debts of the assignor. - Id. 8. 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 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 individual debts of each of said parties does not exceed his portion of the surplus. Held, That the individual property of the assignors passed
4. A suit having been cominenced against
one Z, U. assigned his cause of action to S., who in consideration thereof released his claims against U. and reassigned collateral securities which were considered of no value, and thereafter settled the suit by taking certain bonds from Z. Held, That the bonds were received from Z. and not from U., and that S. was not a bona fide holder of them, but took them subject to plaintiff's
EVIDENCE, 2; LIFE INSURANCE, 4-6; PART-
to the assignee. --Becker v. Leonard, 337. 9. After an interlocutory judgment order
ing a reference to take the account has been entered in an action brought by a creditor of an insolvent debtor to compel the latter's assignee to account upon his failure to do so within one year after his appointment, and providing for the presentation and proving of the claims of the other creditors before the referee appointed thereby, there is no necessity for allowing other creditors of the insolvent to intervene and be made parties plaintiff to the action, even though said interlocutory judgment imposes as a condition of such other creditors proving their claims before the said referee that they should contribute to the payment of plaintiff's costs.—In re application of Lewis et al.,
484. 10. The complaint in an action to set aside
ASSIGNMENT FOR CREDITORS. 1. Where an error has been made in an as
signment for benefit of creditors in substituting the words “party of the first part” for “party of the second part.' and all other references to the parties in the instrument showed this to be a cleriical error, Held, That the assignment should not for that reason be declared
fraudulent. - Smith v. Bellows et al., 61. 2. Defendants, who were insolvent, made a
general assignment for creditors, containing preferences, which was recorded without the assent of the assignee. A few days later they executed a second assignment without preferences, which was properly recorded. Held, That the first assignment was void as against creditors, as it contained preferences, but that the second one was valid.-Schuartz
et al. v. Soutter et al., 135. 3. In 1840 one D. made an assignment for
creditors which was recorded and included certain real estate. Shortly thereafter a mortgage thereon was foreclosed, the assignee not being made a party, and the premises bought in. D. lived thirty years and the assignee twenty years thereafter and it did not appear that the assignment was acted on or any claim m to the real estate thereunder. Held, That under the circumstances the presumption is that the purposes for which the trust was created have ceased and the title reverted to D. or those claiming
under him.-Kip et al. v. Hirsch, 169. 4. Chapter 545, Laws of 1875, is applicable
to assignments made before as well as
after its passage.-Id. 5. Plaintiffs held warehouse receipts for
imported goods as collateral security for notes of the firm of H. & S., who made a general assignment, but the assignee named did not qualify. Defendant suggested that he be appointed assignee and that plaintiffs should turn over to him, as had been done by other creditors of H. & S., the warehouse receipts held by them
a general assignment alleged the making and record of the assignment and also averred, “ That the said assignment was made by the defendants, B., J. and B., with the intent to delay, hinder, and defraud their creditors." The answers of defendants denied the last allegation of the complaint quoted, but were silent as to that previously quoted.. Held, That the due execution of the assignment was an established fact under the pleadings and that a judgment setting aside said assignment, rendered upon a trial at which the only evidence going against the validity of the assignment was to the effect that it was executed by one partner of a firm without authority from the others and had not been ratified by them, and based upon findings that the said assignment had not been executed with the assent or ratification of all the copartners, could not be sustained.
Hooper et al. v. Beecher et al., 505. 11. When the surviving member of a firm
purchases in good faith the interest of his deceased partner from the latter's next of kin, the partnership at that time being solvent, and subsequently makes a general assignment for the benefit of creditors, such assignment is not fraudulent because individual debtors of the assignor are preferred therein to debts contracted by the former firm. – Bates et al. v.
McNulty et al., 528. 12. A provision in an assignment for credit
ors empowering the assignee, if necessary, to finish unfinished work and complete buildings, and pay necessary expense thereof prior to payment of all debts and liabilities, does not invalidate the assignment; such authority is subject to the approval of the courts, and if exercised without their prior permission by the assignee he does so at his peril and subject to their prohibition at any time.
Robbins v. Butcher, 562. See PARTNERSHIP, 8; REPLEVIN, 2 ; SALE, them until it received his directions to pay them out.-Sims v. The U. S. Trust
affidavits showing non-residence and ailigence to serve.-Fisher v. Dougherty, 209.
3. Proof of fraudulent intent sufficient to give jurisdiction to grant an attachment. - The Nat. Park Bk. v. Whitmore et al.,
422. 4. An agreement between a debtor and one
of his creditors that in case he became insolvent he would prefer the latter to the amount of his claim is not in law a fraud on the other creditors, or such conclusive evidence of fraud as to avoid an assign
ment made in pursuance thereof.-Id. See BOND.
10; VENUE, 1.
ATTORNEYS. 1. Wbile the fact that the withholding by
the attorney of money claimed by his client to belong to him is done in good faith and in reliance upon a just belief that he is entitled to more pay is not an absolute answer to summary proceedings to compel the attorney to pay over the same, it is a circumstance which will be taken into account by the court in determining whether it will entertain such summary proceedings, or whether it will require the claimant to assert his rights under the common law in a trial by jury. If, however, upon the return of an order to show cause, granted upon the petition of the client, why the attorney should not be ordered to pay over the money so retained by him, a reference of the matter is consented to, the attorney thereby waives his right to ask that he be proceeded against by common law action and not by summary process – In re applica
tion of Chittenden, 403. 2. When an attorney contracts to conduct
a litigation for the recovery of certain property belonging to his client, and to receive as his compensation a sum of money equal to one third of the value of the property recovered, he must pay out of said sum the fees of counsel employed to assist him in the trial of the action.
In re application of Hynes, 427. 3 When an attorney has collected and has
in his possession the amount of a judg-
In re petition of Lorillard, 469.
1; EXECUTORS, 24; GUARDIANS, 6; Mu-
ATTACHMENT. 1. Under $ 683, Code Civ. Pro., an interested
party may move to dismiss an attachment upon the merits, founding his motion upon affidavits disproving or explain. ing the case made by plaintiff, although a motion to vacate the attachment has already been denied, founded on plaintiff's affidavits used in procuring the attachment. — Thalheimer v. Hays et al.,
121. 2. The court has power in its discretion to
allow amendment of proceedings had. So held where on motion to set aside order of publication and an attachment plaintiff was allowed to file nunc pro tunc AUCTION. 1. Upon an auction sale if the seller violates
Co , 57. 4. A power of attorney to C. to collect
moneys and transact all banking business for testator at said bank was offered in evidence by defendant and ruled out. It appeared that it did not know of the power of attorney until after the transaction in question. Held, That it was in
admissible.-Id. 5. To convict under $ 600, Penal Code, de
claring a bank officer who knowingly overdraws his account and thereby wrongfully obtains money, etc., of the bank guilty of a misdemeanor, the obtaining of the money must be actually shown. It is not enough that the account is overdrawn and that the bank is or has been in possession of the check of said officer for the amount alleged to have been wrongfully obtained by him; nor even that said officer has repaid the said amount to the bank.—The People v.
Clements, 184. 6. To support a conviction it must also ap
pear that the obtaining was wrongful. It is not any and every loan to a bank officer whose account is overdrawn which constitutes the statutory offence.
-Id. 7. A certificate of a banker certifying that
a certain sum has been deposited in the bank is prima facie evidence that such sum has been received, and of an undertaking on the part of the bank to pay that sum to the depositor on demand.The Nat. Bk. of Union Mills v. Clark,
380. 8. A transfer of such certificate has the
effect to transfer all the rights of the depositor to the transferee.
Id. 9. A check drawn for the exact sum de
posited, not by its terms drawn on a par: ticular fund, does not in this State operate
as an equitable assignment.- Id. 10. It is within the scope of the general au
the agreement, either by omitting to show a good title in due time, or by refusing to execute the conveyance, the vendee may maintain an action against the auctioneer to recover the deposit without giving him notice of the vendor's default, but interest thereon is so recov. erable only from the time of a demand thereof from the auctioneer, and a refusal by him to return it. The expenses of the vendee cannot be recovered from the auctioneer.- Walsh v. Meyer, 168.
See LIMITATION, 2.
BANKRUPTCY. 1. Section 9 of the bankrupt law of 1841,
providing that all sales by assignees should be made at such times and in such manner as should be ordered and appointed by the court, did not apply to orders for private sales, and such a sale made on an order which did not fix the time is valid. --Gignoux et al. v. Stafford, 162.
BANKS. 1. When a note or draft is delivered to a
bank for collection and is sent by said bank to a second bank with an endorsement that it is so sent for collection and with written instructions to that effect, and the first bank subsequently fails, the second bank cannot hold said note or draft for its security against a general balance due it from the first bank, but must return the paper to the owners, and if it fails to do that when a proper demand is made, and afterwards proceeds and collects the same, it is chargeable with a conversion thereof.-Stark v, The U. S. Nat.
Bk., 35. 2. Wben a bank to which a person has
delivered a note or draft for collection sends such draft to another bank for that purpose and subsequently becomes insolvent the owners of the paper are enti. tled to repossess themselves of it from the second bank and proceed with its
collection themselves.- Id. 3. Plaintiff's testator delivered to one C. a
check on a bank payable to defendant's order, with directions to deposit it with defendant. C. delivered the check to de. fendant and took a certificate of deposit, and afterwards withdrew the money and converted it. Held, That the use of defendant's name as payee indicated the drawer's intention to lodge the moneys in its custody, and it was bound to keep
thority of the cashier of a bank, without being specially authorized by resolution of the board of directors, to employ an attorney for the purpose of collecting outstanding claims due the bank.-Root
et al. v. Olcott, 383. 11. The property in business paper received
for collection by one engaged in the business of banking and collections, and forwarded by him to his correspondent in the usual course of business, without any express agreement in reference thereto, does not become vested in the correspondent, although he may have remitted upon general account in anticipation of collections.---The Corn Exchange Bk. v. The Farmers' Nat. Bk., 553.
12. It is only where by express contract or
well-established course of dealing the correspondent becomes responsible for the collection and cannot seek reimbursement of advances in case of non-payment that he can retain the draft or the proceeds of the collections as against the real
owner.-Id. 13. An agreement made by a bank which
holds a mortgage as collateral security that in consideration of the payment of said mortgage to it before maturity it will release said mortgage, and also procure the release of another mortgage on the same property held by a third person, is not within the statute of fraud nor ultra vires.-McCraith v. The Nat. Mo
hawk Valley Bk., 572. 14. Measure of damage in an action for
breach of said agreement to procure the release.-Id.
See DEPOSITIONS, 7; EXECUTORS, 10.
See MUTUAL INSURANCE, 1; REPLEVIN, 3;
1. A false accusation in writing of an act in
volving moral turpitude, known to the party making it to be false, accompanied with a suggestion that legal proceedings will be taken unless the person against whom it is made purchases silence, may be a threat within the statute of blackmail, although the accused is simply called upon to render satisfaction for that which, if the charge was true, would entitle the accuser to pecuniary compen: sation. The People v. Wightman, 478.
BROKERS. 1. Plaintiff, residing in Hartford, on July
23, 1883, engaged defendants, stock brokers in N. Y., through one M., their agent and manager of defendants' branch office in Hartford, to buy for him 100 shares of Union Pacific stock, which they did. On July 31, 1883, M. gave defendants instructions to sell said stock purporting to come from plaintiff, but which in fact were given without his knowledge or authority. In accordance with said instruc. tions defendants sold the stock, realizing a profit thereon. Subsequently M. sent to defendants, without plaintiff's knowledge or authority, various orders, which were executed by them in good faith, to buy and sell stocks on plaintiff's account. In December, 1883, plaintiff, supposing defendants still held for him the stock which he bad originally ordered them to purchase, directed its sale. Defendants sold for him that amount of stock and rendered him a statement of the transactions which they had had in his name and which resulted in exhausting the margin furnished by him. Plaintiff thereupon disaffirmed all the transactions except the sale of his stock made on July 31, 1883, which he ratified and brought this action to recover the profit realized thereon. Held, That he was entitled to
recover.-Caswell v. Putnam et al., 137. 2. In an action by brokers for a balance
due on a purchase and sale of stocks for defendant the answer alleged that plaintiffs were to carry it until the margin was exhausted, and then notify him, and if he did not elect to supply further margin, then to sell the stock; and he alleged that plaintiffs had failed to so notify him and did not sell out the stock when the margin was exhausted. Upon the trial, plaintiffs established the facts alleged in their complaint and defendant then took the stand in his own behalf and without contradicting plaintiffs' evidence testified that during his transaction with plaintiffs he met one of them and was asked by him, “ What are you going to do about this stock ?” Defendant replied, “I don't consider myself responsible for it after the margin was used up. " To which plaintiff said, “You know that is not the way we treat our customers Whereupon defendant said, “I told him I didn't consider my. self responsible; that when I put up ten per cent. margin if I didn't make up my mind to continue it would be sold out, and further, that plaintiff gave him to understand that his margin was absorbed when the conversation took place, and he asserted that he never asked plaintiff to renew anything. Held, No question for the jury and a verdict for plaintiff should be directed. - Knickerbocker et al. v. Gould, 548.
1. Where a bond was given conditioned to
pay a sum provided it was held in an action then pending in another court that an attachment therein granted was invalid to hold an equal sum, and the obligee brought suit upon the bond, Held, That he must show covenant broken; and that it was error for the referee to pass upon the merits of the attachment action and to hold here that the attachment was invalid when the original attachment action had in fact never been de
cided.---Thompson v. Hazard, 481. See CONSTABLES; GUARDIANS, 2, 3; N. Y.
CITY, 7, 8; SCHOOLS, 2; SHERIFFS, 4.
See ASSESSMENTS, 10.
1. Where the breaking is not contradicted
it is not error for the court to refuse to charge that the jury might convict of a misdemeanor under $ 505, Penal Code.The People v. Meegan, 475.
See ASSESSMENTS, 10.
7. The act creating a register of Kings
County did not change the Revised Statutes in respect to filing chattel mortgages in those towns of a county outside of the town in which the county clerk's office was kept; and chattel mortgages given by residents of the town of Flatbush are to be filed in the town clerk's office of that town and not in the office of the register of Kings County.-Martin
v. Rothschild, 408. 8. A receiver appointed in supplementary
proceedings cannot attack the validity of a chattel mortgage given by the debtor simply upon the ground of neglect to refile the same as 'required by statute, and cannot defend the possession of the goods against the claim of the mortgagee.
Steward v. Cole, 489. 9. A mortgagor in possession of the mort
gaged goods transferred and delivered the same to a creditor in payment of a pre-existing debt before the filing of the mortgage, who took the goods with knowledge thereof. Held, That the creditor not having reduced his claim to judgment, or obtained a specific lien upon the property by attachment, or otherwise, was not in a position to attack the validity of the mortgage by reason of the omission to file the same as required by statute.-Button v. Rathbone et al., 523.
See BANKS, 9.
CITY COURT OF N. Y.
See CONSTITUTIONAL LAW, 1, 3.
1. Where a debtor gives his creditor an ab
solute bill of sale of chattels upon an oral agreement that it is to be in fact for security and thereafter, but on the same day, the creditor in writing appoints the debtor his agent to sell the property cov. ered by the bill of sale, the latter agreeing to turn over the entire proceeds to be applied upon the debt, and the creditor files his bill of sale in the proper clerk's office, it is not necessary to its validity as a chattel mortgage that the written agreement should also be filed.--Preston
v. Southwick et al., 109. 2. Section 934, Code Civ. Pro., providing
that a copy of a paper filed in a town clerk's office and certified by him is evidence with like effect as the original, does not make a certified copy of a chattel mortgage and acknowledgment proof of the execution of said mortgage. The statute of 1833, Chap. 279, $ 4, is in force and provides of what, in such case, the certificate shall be evidence.- Maxwell y.
Inman, 217. 3. A mortgagor cannot get any title to prop
CIVIL DAMAGE ACT. 1. Under the Civil Damage Act the land
lord and tenant of premises upon which the liquor was sold may be sued jointly and there may, in a proper case, be a recovery against both for exemplary damages; and this although the landlord, if sued alone, might not have been liable for such damages.-Reid v. Terwilliger, 305.
CIVIL RIGHTS. 1. The owner of a skating-rink has no right
erty mortgaged by it under an assignment and transfer to itself by the mortgagees of their right, title and interest therein under the mortgage.--The Phoe
nix Mills v. Miller, 290. 4. Such an assignment operates simply as a
release and discharge of the mortgage lien, and restores the mortgagor to its original rights as respects the property held by it when the mortgage was given.
-Id. 5. In general, the intent with which an act
is done is to be determined by the jury from the facts and circumstances surrounding the particular case; and the witness should not be allowed to testify to his secret uncommunicated intention.
-Id. 6. Evidence of matters of opinion and of
the existence and due execution of chattel mortgage when not admissible or sufficient.-Id.
to refuse tickets of admission to colored
CODE CIVIL PROCEDURE.
1; CHATTEL MORTGAGE, 2; Costs, 2, 7;