any process of court to come personally into the sureties? The complaint herein this state and render an account, the action should be permitted to proceed against resident sureties without an accounting, as other wise plaintiff would be remediless. Appeal from interlocutory judgment entered on decision of Special Term on demurrer. alleges that the guardian did not faithfully apply said legacy, but wrongfully converted the whole of That fact being it to his own use. conceded, the extent of guardian's liability is fixed as definitely as it could be by an accounting. Plaintiff was sole residuary legaHeld also, That as it appears by tee under the will of Sarah J. Girvin, deceased, and as such was entitled the complaint that the guardian is a to a legacy of $450. At the time of resident of London, Canada West, the death of testatrix he was a he cannot be compelled, by any prominor, and the surrogate appointed George Linfort his general guardian, and the latter gave the usual guardian's bond. In order to obtain the legacy belonging to his ward, he inserted in the bond the condition required by 2 R. S., 91, sec. 47, and the legacy was paid to him by direc cess of court, to come personally into this state and render an account. This seems a good reason for permitting the action to proceed, as otherwise plaintiff apparently would be remediless. Judgment affirmed. Opinion by Smith, J.; Talcott, P. tion of the surrogate. The bond J., and Hardin, J.. concurring. was executed by Linfort and two sureties, one of whom was defendants' testator. This action was brought upon the bond by plaintiff after he became of age. Defendants alleged that the complaint is defective in not averring that there had been an accounting with the guardian, and that such accounting is a prerequisite to an action on the bond against the surety. J. W. Stebbins, for applts. Held, That it is obvious from the cases that an accounting by the guardian is not always a prerequisite to an action against the sureties on his bond, and there are many special circumstances in which it may be dispensed with. If the case is such that the extent of the guardian's liability appears without an accounting, why should an accounting be required before suit against SHERIFF'S LIABILITY AS BAIL. N. Y. SUPREME COURT. GENERAL Haberstro, Sheriff, &c., respt. Decided June, 1880. Where the sheriff has become liable as bail for Although the question of extending the sheriff's such relief. John Campbell Hubbell, for applt. the Special Term made the order granting Special Term order giving him leave to answer, upon an affidavit in which Appeal from order of Special he swore to merits and excused his Term, exonerating defendant as bail default in not answering. He noin an action brought by plaintiff ticed the cause for trial at the Febherein against one Warren, and dis-ruary circuit, 1880; it went upon continuing this action. The action the day calendar as a preferred against Warren was for conversion cause, and while it was in that posiof moneys collected by him in a tion he again arrested Warren, and fiduciary capacity. Plaintiff caused on February 25 moved for and obhim to be arrested by the sheriff, tained the order now appealed who took from him bail, who were from. excepted to and failed to justify. Plaintiff recovered judgment against Warren and issued execution against his property, which being returned Held, That by the failure of the origiunsatisfied, she issued a body exe- nal sureties to justify, defendant becution, which the sheriff, defendant came liable as bail, and as such had a herein, returned "not found," on right to be exonerated on surrenApril 3, 1879. This action was com-dering Warren to the jail before the menced against the sheriff on April expiration of time to answer in the 10; on April 15 he again took War- citation against himself; and the ren into custody and held him until Special Term had power to grant him April 20, when he released him upon such further time, after answer, as an undertaking conditioned that he it deemed just, to make such surwould at all times render himself render. Code of Civil Proc., sec. amenable to process of the court 601. Osgoodby, Titus & Moot, for respt. had expired, it was incumbent on him to show a substantial and sufficient excuse for permitting the defendant in execution to be at large. during the pendency of the action But to entitle the sheriff to such against him, and to such as might relief after the time for answering be issued to enforce judgment therein. On April 28 the sheriff and bail who had failed to justify seized Warren and turned him over to the custody of the coroner, and thereupon Held also, That this he failed to obtained an order of Special Teria do, and that the course pursued by exonerating them as bail, which order him in this action indicates very was reversed by the General Term clearly that he had no intention of in October, 1879. 19 Hun, 1. On rearresting Warren until the suit being surrendered to the coroner, against himself was about to be Warren gave him an undertaking forced to trial. and was permitted to go at large. Held further, That although the On October 27, the sheriff not hav- question involved in defendant's ing answered, plaintiff entered judg- motion is one of discretion to a great ment against him by default. On extent, yet it is the duty of the GenNovember 17, the sheriff obtained a eral Term to review the evidence, fendant is without excuse. and on doing so, it is clear that de- agreement plaintiff settled and released his claim for a valuable consideration. At trial, plaintiff sought Order reversed. Opinion by Smith, J.; Talcott, P. to show that he was induced to en J., and Hardin, J., concurring. ter into the settlement by certain false and fraudulent representations made by defendants, and the trial RESCISSION OF CONTRACT. judge so found; and that defend Before a party can rescind a contract he must restore the other party to the condition in which he stood before the contract was made, and this involves a restoration of everything received by him under the contract, whether money, goods, or securities. The fact that money received under a stipulation and agreement settling the claim of parties thereto is a portion of a debt due to one party from the other which could be enforced were it not for the stipulation, will not avail to make retention of such money consistent with rescission of the stipulation. ants were liable to restore said bonds and had not restored them; but he found also that plaintiff had not restored or offered to restore what he had received on consideration of the settlement, and the decision dismissing complaint rested mainly upon the ground that the compromise had not been rescinded and was a defence. The bonds loaned by plaintiff to the bank had been misappropriated to his own use by Starin, its cashier. Thereupon a controversy arose between plaintiff and the bank as to its liability for the bonds, it being assumed and admitted by plaintiff, the bank and Starin, that Starin was liable in any event. Starin delivered to plaintiff a statement of his indebtedness to plaintiff amounting to $93,502.43, which amount included the bonds in controversy and other liabilities of Starin to plaintiff. After considerable negotiation, an adjustment and Appeal from judgment dismissing settlement of all said matters in complaint, entered on decision of controversy between plaintiff and court on trial at circuit without a the bank, and of the indebtedness jury. Therefore, in an action for the debt, when plaintiff claims that the settlement is void for fraud, the retention of the money received under the settlement, although a portion of the debt sued for, negatives the rescis. sion of the settlement by plaintiff, and makes the settlement a good defence. of Starin to plaintiff, was finally Action to recover damages for effected by the payment to plaintiff breach of agreement made by de- of $30,000 in cash, the giving of fendants to replace certain U. S. Starin's note to plaintiff for $63,000 bonds loaned by plaintiff to the de- and a check for $116,08. As collatefendant bank. The answer inter- ral security for the note, Starin deposed, among several defences, the livered to one Woodruff, as trustee fact that after the alleged breach of for plaintiff, securities and property, debt for which the bank was liable, and the trustee agreed to endorse to the moneys received by plaintiff upon the note all sums received by in consideration of the settlement him from such securities and prop- and release, they were but part of a erty. It was also agreed as part of debt now ascertained to have been said settlement that Starin should due him from the bank as well as remain cashier until July following, from Starin, and which he, thereand that no bankruptcy proceeding fore, has the right to retain, and as should be instituted against him to the agreements by the bank in aid which the bank could prevent; and of the trust created by Starin for he was retained as cashier and no plaintiff's benefit, the bank cannot bankruptcy proceedings were com- complain of the preference which menced against him. As part of plaintiff thus obtained, as it was a said settlement the bank furnished preference in respect to the same $25,000 of the $30,000 paid. Plaintiff executed and delivered to the bank an instrument in writing, as follows: "Whereas, a controversy has existed and does now exist between Benjamin Gould and the Cayuga County National Bank, in relation to the liability of said bank to said Gould by reason of certain transactions in regard to certain United States securities, which con- its agreement: (1). To pay plaintiff troversy has been amicably settled $25,000 in hand; (2.) To forego its between the parties by the payment right to institute proceedings in of said bank to said Gould of the bankruptcy against Starin by reason sum of $25,000; now in considera- of the preferential assignment in tion of the receipt of said sum from trust executed by him for plaintiff's said bank, I do hereby release and benefit, and (3). To retain Starin as discharge said bank from all liabil-cashier for a specified time. The ity and claim by reason of any agreement of bank was fully exmatter or thing growing out of the ecuted. In addition, plaintiff renatter above referred to. Auburn, ceived from Starin $5,000 in cash, March 12, 1873." (Signed), his checks for $116,08, and his note for $63,000, and from the collateral security for the note, $680. All that plaintiff thus received he retained when he commenced action. "BENJAMIN GOULD." About $2,000 had been realized by the trustee from said trust securities and property, and $680 thereof had been paid to plaintiff. Held, That from the evidence the consideration for the settlement and release, moving from the bank, was this Held also, That the general rule Counsel for appellant contended that the general rule as to restitu- is, that before a party can rescind a tion, essential to rescission of con- contract he must restore the other tracts, has no application to the party to the condition in which he present case, for the reason that as stood before the contract was made, and this involves a restoration of everything received by him under graphers' fees unless there is a special obligation to that effect; in the absence of such obligation the client is alone responsible. the contract, whether money, goods Evidence that defendants had paid similar bills or securities. on other occasions is inadmissible, as such facts would not show what the contract was in reference to the present transaction. This action was brought by plaintiff to recover the value of stenogra Held also, That the reasoning above stated by which appellant seeks to take this case out of the general rule is not sound. However meritorous the claim of plain-pher's services, rendered by his astiff against the bank, it was a mere claim or chose in action until the set-signors to defendants, who were a tlement transmuted it into money firm of lawyers. Upon the trial in possession, and so long as plain- plaintiff offered evidence of previtiff retains the money the parties defendants, when they performed ous dealings of his assignors with are not restored to their original work, furnished bills to defend condition. The settlement is not rescinded so long as it is made to perform the office of compelling the bank to pay a debt which it refused to pay, and which it would not have paid except as a condition of settlement. Retention of the money is an affirmance of the settlement. ants for such work, and received This offer was excluded. Held, no error; that what had been done on other occasions would Held also, That as to the consid- not show what the contract was in eration moving from the bank other reference to this transaction, and than money paid, it is manifestly render defendants liable for the impossible to restore the bank to plaintiff's claim. its former condition, and, therefore, the right of rescission does not exist. Plaintiff mistook his remedy. Assuming that he was defrauded, his remedy was to sue for the damages which he suffered by the fraud. Judgment affirmed. When a person contracts as the agent of another, and the fact of his agency is known to the persɔn with whom he contracts, the principal alone and not the agent is responsible. This rule applies to the relationship of attorney and client, and except to a certain class of officers, who are not within the general. rule, attorneys cannot be held personally responsible for services of this kind rendered in a suit, unless there is a special obligation to that effect. 11 N. Y., 408; 14 Hun, 252; al., 12 id., 534, 660. The charges of stenographers are within the principle above laid down. Opinion by Smith, J.; Talcott, P. J., concurring in opinion, and Hardin, J., in result. ATTORNEYS. EVIDENCE. N. Y. COURT OF APPEALS. Bonynge, applt., v. Field et respts. Decided June 1, 1880. Attorneys are not personally liable for steno Judgment of General Term, af |