subsequent to his death, at the request of his administratrix. Benj. P. Lunt died intestate in 1875, and defendant was duly appointed his administratrix. At the time of his death Mr. Lunt was a part owner of the steamer Metropolis, of which the plaintiffs were also part owners and managing agents for the other owners. In the winter of 1877-8 the Metropolis was wrecked. Thereafter the plaintiffs incurred divers expenses in connection with said wrecking and the subsequent proceedings instituted by the government to ascertain the cause of such wrecking, amounting to nearly $3,000 in money, and $1,000 in labor, Plaintiffs bring this action to recover a rateable proportion of such expenses from the estate of the said B. P. Lunt, alleging that such expenses had been incurred at the instance and request of defendant, as administratrix of the said estate. Defendant demurred, on the If the administratrix interfered in the matter, she did so at her own. personal risk. It was none the less a mere personal obligation from the fact that she could be reimbursed out of the estate upon an accounting. It is not alleged that plaintiffs acted under any employment by the intestate, or were carrying out an arrangement made with him. The claim, then, rests simply on the fact that a part of a ship belonged to the estate, and that at the instance and request of the administratrix and the other part owners, plaintiffs paid certain expenses. As the administratrix could not, in thus contracting, bind the estate, the demurrer was well taken. Judgment reversed. Opinion by Neilson, Ch. J.; McCue, J., concurring. ACCOUNT STATED. ground that the complaint did not N. Y. SUPREME COURT. GENERAL state facts sufficient to constitute a cause of action. The demurrer was overruled at Special Term and judgment ordered for the plaintiffs. W. C. Beecher, for applts. W. H. Taggard, for respt. Held, That the allegation that the plaintiffs performed the services and made the disbursements at the request of the defendant is not material. For even if the consideration and an agreement had been fully alleged, it would be a sufficient answer that the administratrix could not thus bind the estate. 47 N. Y., 360; 41 id., 319. TERM. FOURTH DEPT. W. Hudson Stephens, ex'r, respt., v. Rufus B. Waite, applt. Decided June, 1880. Plaintiff's testator had placed moneys in the hands of defendant, for investment. On application made by plaintiff, defendant admitted that he owed a balance to the estate, and also sent a written statement showing such balance. Held, that his giving this statement, coupled with his admissions, established a cause of action against him. Abel D. Burt gave Rufus B. Waite some $3,000, to be loaned by him for the benefit of Burt. Burt died in 1878, and plaintiff, as executor, wrote Waite for a statement of Burt's affairs. Stephens also called on Waite, and held a conversation with him, wherein Waite said "there was $2,053.33 due from him the 17th day of February, 1878, as for the amount of moneys loaned for A. D. Burt." Waite also sent the following statement to Stephens "R. B. Waite, Dr. to Abel D. Burt: Balance of account February 17, 1878, $2,053.33." Judgment for plaintiff. : debt from a firm debt to an individual one; that plaintiffs acquired a good title, and were entitled to recover, even though the vendors made use of the proceeds to pay some of their debts in preference to others. Hicks & Eastman bought the stock of hardware, &c., of Wood & Co., and carried on the business of hardware merchants. In 1876 Hicks & Eastman, being embarrassed, sold out the same stock to another firm, known as Eastman & Hicks, the plaintiffs. The plaintiffs, in making L. J. Dorrence, for the applt. C. D. Adams, for the respt. Held, That the act of giving this payment, gave their individual prostatement, this admission of indebt-missory notes. Part of the purchase edness, coupled with the uncontra- price from Eastman & Hicks to dicted admissions made by defen-Hicks & Eastman was turned over to Wood & Co. for the former indant to Stephens, established a cause debtedness of Hicks & Eastman, of action against the defendant. The defendant thus recognized his oblibut the purchaser, Eastman, had no gation to repay that sum to the knowledge of such an application of estate of the deceased. Manifestly his notes. The plaintiff, Hicks, had he had taken the money unto him- no knowledge of any firm debts of self, and ought to pay. 24 Barb., 300. As there was an error in the computation, judgment should be reduced, and, as reduced, affirmed without costs. Opinion by Hardin, J.; Talcott, P. J., and Smith, J., concur. REPLEVIN. N. Y. SUPREME COURT. GENERAL Hicks & Eastman, except the claim Irving G. Vann, for applt. Held, That the fact that Eastman & Hicks had each given their individual notes for their respective George W. Hicks et al., respts., v. shares of the purchase price did not, Spencer Clark, applt. Decided June, 1880. Plaintiffs, as partners, bought certain goods, giving their individual notes therefor. The vendors turned over a part of these notes to one of their creditors. Defendant, another creditor, attached these goods. In an action in equity, change the debt from a firm debt to one of a separate and individual character. Held also, that the plaintiffs acquired a good title and made payments therefor, and they were en to recover possession, Held, that the giving titled to recover the same, even of the individual notes did not change the though the vendors made use of the "not on cross proceeds in payment of some of the was objected to as Opinion by Hardin, J.; Talcott, CRIMINAL PRACTICE. N. Y. SUPREME COURT. GENERAL Henry Stape, plff. in error, v. The Decided June, 1880. An accomplice of the prisoner had made a statement of the crime, which was delivered to the district attorney. The prisoner's counsel called for it for the purpose of impeaching such accomplice. Held, not proper evidence on the issues involved. A witness, on cross-examination, cannot be examined as to matters upon which he was not examined in chief. In the absence of a claim of privilege it is A witness was asked if he deserted from the army?" Objected to; objection overruled; and exception. E. W. Gardner, for plff. in error. Frank Reese, district attorney, for defts. in error. Held, That the statement of Bush was not evidence which could be properly used upon the issues involved. The court below exercised its legitimate discretion as to the admission of evidence, and nothing short of a clear abuse of this discretion would justify an interference with its exercise. 34 N. Y., 230; 42 N. Y., 282; 9 W. Dig., 463. Held also, That the offer to prove by Mrs. B. was matter entirely new, she not having been examined in chief on that point, and we cannot therefore say that there was any proper to ask a witness as to his innocence right to cross-examine her upon the or guilt of the crime of desertion. One Bush, who was an accomplice of plaintiff in error in the crime, made a statement of the commission of the crime and the details thereof to one Doolittle, who testified that he had delivered it to the district attorney. The counsel for the prisoner called for the statement for the purpose of impeaching Bush. The district attorney refused to deliver it. No ruling was made and no exception taken. The prisoner offered to show, by Mrs. Bush, that he, Bush, "did not subject. If the prisoner had recalled her as a witness, and offered to prove the facts embraced in his offer, they would have been received. by the court. Held also, That in the absence of a claim of his privilege, it is proper to ask a witness as to his innocence or guilt of the crime of desertion. 32 N. Y., 127; 36 N. Y., 517. Having found no error prejudicial to the prisoner, the judgment of conviction must be affirmed. Judgment affirmed, with directions to the sessions to enforce the same. have ten dollars on the first of Opinion by Hardin, J.; Talcott, November, at Canandaigua," which P. J., and Smith, J. concur. WARRANTY. N. Y. SUPREME COURT. GENERAL James F. Converse, applt., v. John Decided June, 1880. Defendants' intestate, having an agreement with A & B, by which they were to share equally with him in the profits of the business carried on by him, made an agreement with C & D, by which he sold them each a quarter interest therein. In an action by C, Held, That intestate was liable for breach of his contract of warranty of title the difference between what C acquired by his purchase and that which he purchased. profits arising from such sale to Foreman, N. Wood, Converse, and Jenkins, each one-quarter. Foreman died in March, 1872, and a claim was presented by Converse to his administrators for damages arising from the agreements so made by Foreman, which claim was referred under the statute. Referee reported in favor of plaintiff, which was set aside by Special Term, and from that order plaintiffs appeal. S. C. Huntington, for applt. Levi H. Brown, for respts. Held, While Foreman originally owned one-third, he undertook to sell to Converse and N. Wood each In the spring of 1865, one Fore- a quarter, thus undertaking to sell man, who had agreed to buy the to them one-half, while he only milk from certain dairies at one cent owned one-third, and becoming liaper pound, entered into a verbal ble for a breach of his contract of agreement with one Jenkins and J. warranty of title as to the excess N. Wood, by which it was agreed sold over and beyond what he that they should share equally in the owned. 20 N. Y., 228; 7 Abb. Pr., profits or loss of the transaction of N. S., 107; 15 N. Y., 437; 34 Id., buying milk and manufacturing it 485. into cheese. Shortly thereafter, Upon his warranty of title or misForeman, without the knowledge or represention of the facts of his consent of Jenkins and J. N. Wood, ownership, he became liable to remade a verbal arrangement with the spond to them for a breach of his plaintiff and one N. Wood, by which agreement, or for damages sustained he agreed to let them have each a by them by reason of his fraud. quarter interest in the contract for So far as he was liable by reason of the purchase of the milk, without the fraud, if it was fraud, his liability disclosing to them the interest of arose in 1865, more than six years Jenkins and J. N. Wood. The prior to the filing of his claim. 32 cheese which was manufactured was N. Y., 417. The claim, so far as it sold by a committee of which Con- rested upon his fraudulent sale of verse and S. T. Wood were mem- what he did not own, was barred by bers, and while they still held in the statute, 26 N. Y., 224; 41 id., their hands the funds arising from 164; 57 id., 351, and this desuch sale were notified of the claims fense was sufficiently raised upon of Jenkins and J. N. Wood by virtue the hearing, and was not necessary of their bargain with Foreman, but to be pleaded, as it was raised upon in disregard thereof they paid the the trial in various forms, and that must be held sufficient to be avail- wholly unsatisfied, no property havable to these administrators. 1 ing been found upon which a levy Lans., 443; 30 Barb., 110; 5 Hun, could be made. The respondents 349. Hatch and Williams, who are now The referee should have allowed appellants, were subscribers to the Converse to recover for the breach capital stock of the company at its of warranty as to Foreman's title to inception, each to the extent of the said contract as damages, only $10,000, of which they have paid the difference between one-sixth, only thirty per cent. As there is which the plaintiff acquired the no claim or evidence that they have right to by virtue of Forman's as- parted with their stock, each resignment to him, and one-fourth, mains in debt to the company in the which he purchased, viz., one-twelfth. sum of $7,000, and the object of the Order appealed from affirmed. present bill is to subject that inOpinion by Hardin, J.; Talcott, debtedness to the payment of the P. J., and Smith, J., concurred. complainant's judgment. Upon these facts the Circuit Court decreed that the complainant should PARTIES. recover from the defendants the sum of $9,378.72, the amount due upon his judgment against the com STOCKHOLDERS. U. S. SUPREME COURT. Ozias M. Hatch et al., applts., v. pany at the date of the decree, but Charles A. Dana. Oct., 1879. In an action by the creditor of a corporation against stockholders thereof, it is not necessary to make all the stockholders of the company defendants. A court of equity may enforce payment of stock subscriptions, though no calls therefor have been made by the company. Appeal from the Circuit Court of the United States for the Northern District of Illinois. that of the said sum no more than $7,000, with interest from the date of the decree, should be collected from either of the aforesaid defendants, that sum being the amount due from each of them to the company. Appellants insist that a creditor of an insolvent corporation is not at liberty to proceed against one or more delinquent subscribers to recover the amount of his debt, without an account being taken of other indebtedness, and without bringing in all the stockholders for contribution. They insist, also, that by the terms of the subscripThe complainant recovered a tions for stock made by these appeljudgment against the Chicago Re- lants they were to pay for the publican Company for the sum of shares set opposite their names re$6,419.17, on the 12th day of April, spectively, "as called for by the 1871, which remains unreversed said company;" that the company and unsatisfied, and an execution made no calls for more than thirty was issued thereon, and returned per cent. ; that, therefore, this com Creditors' bill to subject the indebtedness of defendants, as stockholders, upon their subscriptions, to the payment of a judgment against the corporation. |