any process of court to come personally into the sureties? The complaint herein this state and render an account, the action alleges that the guardian did not should be permitted to proceed against resi. dent sureties without an accounting, as other faithfully apply said legacy, but wise plaintiff would be remediless. wrongfully converted the whole of

Appeal from interlocutory judg- it to his own use. That fact being ment entered on decision of Special conceded, the extent of guardian's Term on demurrer.

liability is fixed as definitely as it Plaintiff was sole residuary lega- could be by an accounting. tee under the will of Sarah J. Girvin,

Held also, That as it appears by 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 cess of court, to come personally George Linfort his general guardian, into this state and render an account. and the latter gave the usual guard- This seems a good reason for perian's bond. In order to obtain the mitting the action to proceed, as legacy belonging to his ward, he in- otherwise plaintiff apparently would serted in the bond the condition re- be remediless. quired by 2 R. S., 91, sec. 47, and Judgment affiirmed. the legacy was paid to him by direc- 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


BAIL. brought upon the bond by plaintiff after he became of age.

N. Y. SUPREME COURT. GENERAL Defendants alleged that the com

TERM. FOURTH DEPT. plaint is defective in notaverring that there bad been an accounting with Haberstro, Sheriff, &c., respt.

Alice Douglas, applt., v. Joseph L. the guardian, and that such accounting is a prerequisite to an action on Decided June, 1880. the bond against the surety.

Where the sheriff has become liable as bail for J. W. Stebbins, for applts.

a defendant held under a warrant of arrest D. B. Beach, for respt.

in civil action, he is exonerated by surrenderHeld, That it is obvious from the

ing defendant to the jail before the expira

tion of time to answer in an action against cases that an accounting by the himself; and the court has power to grant guardian is not always a prerequisite bim such further time, after answer, as it to an action against the sureties on

deems just, to make such surrender. his bond, and there are many special To entitle the sheriff, however, to such relief,

after the time for answering has expired, he circumstances in which it may be must show a substantial and sufficient excuse dispensed with. If the case is such for permitting the defendant in a body exethat the extent of the guardian's

cution to be at large. liability appears without an

Although the question of extending the sheriff's

time to make surrender of defendant is largely counting, why should an account

discretionary, still it is the duty of the Gening be required before suit against eral Term to review the evidence on which


the Special Term made the order granting Special Term order giving him leave such relief.

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.

John Campbell Hubbell, for applt. Plaintiff recovered judgment against Warren and issued execution against

Osgoodby, Titus & Moot, for respt. 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. 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 there- had expired, it was incumbent on in. On April 28 the sheriff and bail him to show a substantial and suffiwho had failed to justify seized War- cient excuse for permitting the deren and turned him over to the cus- fendant in execution to be at large. tody 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, and on doing so, it is clear that de-agreement plaintiff settled and refendant is without excuse.

leased his claim for a valuable conOrder reversed.

sideration. At trial, plaintiff sought Opinion by Smith, J.; Talcott, P. to show that he was induced to enJ., 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

ants were liable to restore said bonds N. Y. SUPREME COURT. GENERAL and had not restored them; but he TERM. FOURTH DEPT. found also that plaintiff had not re

stored or offered to restore what he Benjamin Gould, applt., v. The had received on consideration of the Cayuga County National Bank et settlement, and the decision disal., respts.

missing complaint rested mainly

upon the ground that the comproDecided June, 1880.

mise had not been rescinded and Before a party can rescind a contract he must was a defence.

restore the other party to the condition in The bonds loaned by plaintiff to which he stood before the contract was the bank had been misappropriated made, and this involves a restoration of everything received by him under the con

to his own use by Starin, its cashtract, whether money, goods, or securities. ier. Thereupon a controversy arose The fact that money received under a stipula- between plaintiff and the bank as to

tion and agreement settling the claim of par. its liability for the bonds, it being ties thereto is a portion of a debt due to one assumed and admitted by plainparty from the other which could be enforced were it not for the stipulation, will tiff

, the bank and Starin, that Starin not avail to make retention of such money was liable in any event. Starin

consistent with rescission of the stipulation. delivered to plaintiff a statement Therefore, in an action for the debt, when

of his indebtedness to plaintiff plaintiff claims that the settlement is void for fraud, the retention of the money re

amounting to $93,502.43, which ceived under the settlement, although a por. amount included the bonds in contion of the debt sued for, negatives the rescis. troversy and other liabilities of sion of the settlement by plaintiff, and makes Starin to plaintiff. After considerthe settlement a good defence.

able 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.

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 loaded 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, 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. Plain- debt for which the bank was liable, tiff executed and delivered to the and the bank, on paying the debt, bank an instrument in writing, as will be entitled equitably to be subfollows: "Whereas, a controversy rogated to plaintiff's rights in rehas existed and does now exist be- spect to the trust property. tween Benjamin Gould and the G. F. Comstock, for applt. Cayuga County National Bank, in W. F. Cogswell, for respts. relation to the liability of said bank Held, That from the evidence the to said Gould by reason of certain consideration for the settlement and transactions in regard to certain release, moving from the bank, was 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 $23,000; 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

“BENJAMIN GOULD.” for $63,000, and from the collateral About $2,000 had been realized security for the note, $680. All by the trustee from said trust secu- that plaintiff thus received he re• rities and property, and $680 there- tained when he commenced this of had been paid to plaintiff.

action. Counsel for appellant contended Held also, That the general rule 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 graphers' fees unless there is a special obli. everything received by him under gation to that effect; in the absence of such the contract, whether money, goods

obligation the client is alone responsible.

Evidence that defendants had paid similar bills or securities.

on other occasions is inadmissible, as such Held also, That the reasoning facts would not show what the contract was above stated by which appellant in reference to the present transaction, seeks to take this case out of the

This action was brought by plaingeneral rule is not sound. However meritorous the claim of plain- pher's services, rendered by his as

tiff to recover the value of stenogratiff against the bank, it was a mere claim or chose in action until the

set- signors to defendants, who were a claim or chose in action until the set- firm of lawyers. Upon the trial tlement transmuted it into money plaintiff offered evidence of previin possession, and so long as plaintiff 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 defendcondition. The settlement is not

ants for such work, and received rescinded so long as it is made to perform the office of compelling the payment from them for the same.

This offer was excluded. bank to pay a debt which it refused

S. Jones, for applt. to pay, and which it would not have paid except as a condition of settle- R. E. Deyo, for respts. ment. Retention of the money is Held, no error; that what had an affirmance of the settlement. 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, When a person contracts as the the right of rescission does not exist. agent of another, and the fact of his Plaintiff mistook his remedy. As- agency is known to the person with suming that he was defrauded, his whom he contracts, the principal remedy was to sue for the damages alone and not the agent is responwhich he suffered by the fraud. sible. This rule applies to the reJudgment affirmed.

lationship of attorney and client, Opinion by Smith, J.; Talcott, P. and except to a certain class of offiJ., concurring in opinion, and Hard- cers, who are not within the general in, J., in result.

rule, attorneys cannot be held personally responsible for services of

this kind rendered in a suit, unless ATTORNEYS. EVIDENCE.

there is a special obligation to that N. Y. COURT OF APPEALS.

effect. 11 N. Y., 408 ; 14 Hun, 252; Bonynge, applt., v. Field et al., 12 id., 534, 660. The charges of respts.

stenographers are within the prinDecided June 1, 1880.

ciple above laid down. Attorneys are not personally liable for steno- Judgment of General Term, af

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