sequently that portion of the will affecting the real property was void as creating an unlawful suspension of the power of alienation.

That the fact that a power of sale was given by the will to the executors did not affect the question, because the proceeds would be still held in trust under the will charged with the duties and obligations imposed by the trust.

Judgment affirmed.

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

STATUTES. PENALTY. CORPORATION.

N. Y. SUPREME COURT. GENERAL

TERM. FIFTH DEPT.

Bridget French, respt., v. Solomon D. McMillan, applt.

Decided Jan., 1887.

The treasurer of a manufacturing corporation upon a written request of a party entitled thereto for a statement of the affairs of the company, is required only to make and deliver an account of all the

assets and liabilities in detail under oath of such corporation, and is not required to include in such statement the details of the financial operations which produced the financial results.

In the construction of the words used in a

statute all portions of the statute in pari materia may be referred to for the purpose of determining the legislative intent in its enactment, and when penal the meaning of the words used will not be extended by implication.

Appeal from judgment entered on report of a referee. Defendant was treasurer of the Plumbago Oil Co., a corporation formed under the "manufacturing act," of which plaintiff was a stockholder. She brought this action to recover the penalty prescribed

by Laws of 1854, Chap. 201, §1, as amended by Laws of 1862, Chap. 472, §1, for an alleged failure of defendant to make and deliver to her such a statement of the affairs of the company as she was entitled to.

Defendant made under oath a statement in detail of the assets and liabilities of the company, which was delivered to plaintiff in due time. She shortly afterward called upon him and informed him that the statement was not the one she wanted. She wanted a statement of "all the oil that was sold." Defendant refused to furnish any further statement, insisting that he had complied with the statutory requirement. recovered $1,550.

Plaintiff

Edward Harris, for applt.
J. A. Stull, for respt.

Held, That the contention of plaintiff involves the construction of the word "affairs" as used in the statute in the phrase "affairs of such company under oath embracing a particular account of all its assets and liabilities."

That in the construction of a statute and the interpretation of the words used in it, reference is had for that purpose to the mischief, if any, it is designed to overcome, and which might otherwise exist, so far as the same may be ascertained from the statute, and it as a whole, and those portions of the statute in pari materia may be referred to for such purpose; but a penal statute will not be extended by implication. It is entitled to a reasonable construction and such as its terms fairly import. 50 N. Y., 314; 80 id., 128.

That the general purpose and character of the office of treasurer fairly imports that he has charge of the accounts showing the financial condition of his company; but his relation to the company is not necessarily such as to bring into the accounts in his charge the details of all the corporate business through its various agencies, although the financial results go on his books.

That the framers of the statute had evidently in view the results of the business of the corporation, and hence required that the statement should contain "a particular account of all its assets and liabilites in minute detail." This direction to that extent, and to that only, is required by the statute. The statement is treated by the referee as in that respect, and to that extent, a compliance with the statute, and we think in view of the evidence and for the purpose of the trial he was justified in so doing, and for the purpose of this review we so assume.

That it is not to be supposed that the legislature intended to subject a party to a penalty without violation of some well defined duty, nor upon a doubtful construction. The information inquired for, by the provisions, was the financial condition of the corporation, and the purpose was to furnish the means to enable a stockholder to obtain it. The statute has defined what the statement of the affairs he is entitled to, and may demand, shall contain. We think the reasonable construction of the provision in question is

such that the term "affairs" is no broader in the intended requirement than the defined account which the officer is directed to embrace in the statement. The alleged right to a statement of the varied business transactions of the company does not seem consistent with the provisions of the statute, and the construction of the statute contended for by plaintiff is not reasonable within its title or spirit.

Judgment reversed and new trial granted, costs to abide event. Opinion by Bradley, J.; Haight and Lewis, JJ., concur.

ATTACHMENT.

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

Peter Bowe, respt., v. Robert C. Brown et al., applts.

Decided Dec. 31, 1886.

Plaintiff, as sheriff of N. Y. County, attached certain goods as the property of defendant in the action in which the attachment was issued. Said goods were claimed by a third person, and plaintiff in said action gave a bond to indemnify the sheriff for attaching them. The claimant thereupon commenced an action to recover possession of said goods and gave the necessary undertaking with two sureties. Said sureties were excepted to, and one of them failed to justify. Thereafter the action was discontinued by consent, plaintiff paying the costs of the sheriff. Subsequently the claimant commenced an action against the sheriff to recover the value of said goods in which judgment was recovered against the sheriff. In an action against the sureties in the bond of indemnity given the sheriff, Held, That the discontinuance of the action of replevin was proper and constituted no defense. That the fees of a referee appointed upon a default to assess the sheriff's damages, which default was subsequently opened by an order which

failed to provide for the payment of said fees, were a proper item of disbursement to be taxed in the costs upon final judg

ment in favor of the sheriff.

Plaintiff, as sheriff of the county of N. Y., had attached certain goods as the property of defendant in an action in which an attachment was issued to him. Said goods were claimed by the R. & H. Mfg. Co., and plaintiff in said action gave the sheriff a bond of indemnity against liability arising from attaching said goods. Thereupon said company commenced an action against the sheriff to recover possession of the goods and furnished the necessary undertaking with two sureties. The sureties were excepted to and one of them failed to justify, and thereafter the sheriff consented to a discontinuance of said action on payment of his costs. After that discontinuance an action was brought against the sheriff by the same company to recover the value of the property attached, and in that action judgment was rendered against the sheriff. The sheriff then brought this action against defendants as sureties in the bond of indemnity to recover the amount of said judgment and his expenses for services of counsel and disbursements. The fact that the sheriff had consented to the discontinuance of the replevin action without the knowledge or consent of the sureties was urged as a defense to this action.

Culver & Betts, for applts. Chas. F. MacLean, for respt. Held, That no violation of any legal obligation whatever ap

peared to have been made in the discontinuance of the replevin action. That plaintiff in that action had the right to discontinue it if it chose to do so, and that discontinuance might very well have been induced by its inability to supply a surety in place of the one who was not able to justify. That it was no answer to this position that the undertaking would have been good with one surety, for, having been executed with two, the surety justifying had the right to require that he should be liable upon it only in that form.

Defendants originally made default in answering the complaint in this action, and upon that default a reference was ordered to ascertain the amount of plaintiff's damages. damages. This default was subsequently opened by an order which made no provision for the payment of the fees of the referee, but in the final adjustment of the costs they were claimed before, but rejected by the clerk. Upon an appeal from his decision an order was made directing the allowance to plaintiff of the said fees. From this order defendants appealed.

Held, That the expenses of the reference were disbursements incurred by plaintiff in the regular prosecution of the action, and those disbursements he had a right to include in the final costs recovered by him.

Judgment affirmed and order modified by reducing the referee's fees to the amount allowed by law and as so modified affirmed.

Opinion by Daniels, J.; Brady and Churchill, JJ., concur.

ATTORNEYS. EVIDENCE.

CHAMPERTY.

N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT.

and indorsed by the latter. Another witness testified to a conversation which he had had with T.

about the payment of the judg

ment. This evidence was received

Hebbard et al., respts.

Decided Dec. 31, 1886.

The admissions of an attorney in conversasations with third persons, not in the presence of his client, are not competent as evidence against the latter as to the facts of his case.

The purchase of a judgment by an attorney for the purpose of collecting it, as such, by execution, or any other mode that simply enforces the judgment or its lien, and not for the purpose of bringing an action thereon, is not prohibited by § 73, Code Civ. Pro.

This action was brought by plaintiff, as assignee of a judgment, to have the judgment declared a lien upon certain real property conveyed by the judgment debtor to defendant Hebbard, by establishing that the conveyance to Hebbard was a mortgage and not an absolute conveyance, and thereupon to redeem by paying off said mortgage and thereafter selling the lands under the judgment. Plaintiff was a clerk in the office of T., his attorney in this action, and it was alleged as one of the defenses that the judgment had been bought and paid for by said T. and title thereto taken in the name of plaintiff for the purpose of bringing suit thereon for the benefit of T. in contravention of the statute.

In the course of the trial a witness was called who testified that T. told him that the check which paid for the assignment was made by him payable to plaintiff's order

Vol. 26-No. 3.

exception. Judgment was rendered dismissing the complaint, and plaintiff appealed.

Abner C. Thomas, for applt.
J. Tracey Langan, for respts.

Held, That an attorney is not competent to make admissions in conversations with third persons which will be evidence against his client as to the facts of his case. That plaintiff was not shown to have been present at the conversations related, and the mere incident that he was a clerk and stenographer employed in his office did not subject him to the effect of any casual declaration of T. as evidence against him. That, without the declarations of T., there was nothing to prove the defense alleged, and for that error a new trial would have to be granted.

That, moreover, there is nothing in § 73, Code Civ. Pro., to prevent an attorney from buying anything named in the act for any other intent, use or purpose than that of bringing an action thereon. That if an attorney bought a judgment with intent to sue the judgment debtor thereon it would be deemed "a thing in action" within the meaning of said provision and would be within the spirit of the law and the mischief to be prevented; but that it is quite another thing to buy a judgment with the intent only to enforce it as such by execution against the judgment

debtor or by pursuing its lien against his property in his own or another's hands, and that the purchase of a judgment with such an intent is not within the prohibition of the statute. 3 Barb., 630; 26 How., 213; 88 N. Y., 73. Judgment reversed and

trial ordered.

new

Gray, 92; 14 Pick., 518; 35 N. H., 22; 9 id., 513; 5 Neb.. 287; 20 Ala., 65.

The complainant testified that in January, 1884, being then about seventeen years old, she entered the service of the accused, who was a Roman Catholic priest, she and her foster parents with whom

RAPE. EVIDENCE.

N. Y. COURT OF APPEALS.

The People, applts., v. O'Sullivan respt.

Decided March 1, 1887.

On the trial of an indictment for rape the complainant was allowed to testify that defendant had previously attempted to ravish her, but failed. Held, No error.

While a disclosure made by the complain

ant is admissible to corroborate her evidence, where it is not recent, as soon as suitable opportunity is furnished, it should not be received. Affirming S. C., 26 W. Dig., 196.

Defendant was convicted of the crime of rape. Upon the trial, after the complainant had testified to the rape, she was allowed, against defendant's objection, to testify that four days previously he made an attempt to ravish her; that she resisted and he failed.

ants at his church; that the rape was committed on May 6, 1884, and the complainant remained in the service of the accused until August 20, 1884, without in any manner disclosing what had happened to any one. She had during that period visited her foster parents and had full and free communication with them. She left defendant's service because he whipped her for some trifling offense and went to live with her foster parents, remaining until Sept. 10, when she went to Syracuse to work in a situation procured for her by the accused at her request. On March 28, 1885, she disclosed, for the first time, at confession. She excused the delay in making the disclosure by testifying that after the assault upon her she went voluntarily and without any solicitation on his part and confessed to the accused on three occasions and that each time he

John C. Hunt, for respt. Held, No error. 99 N. Y., 667; Whart. Cr. Ev., 35, 46, 49; 45 N. H., 156; 24 Mich., 6; 15 Tex. App., 171; 4 F. & F., 76; 4 L. R.. 154; 3 Cox Cr. Cas., 92; 8 Hump., 585; 45 Iowa, 389; 114 Mass., 285; 14

about the assault, and on her answering in the negative, he said. "God bless you, my child." She also testified that while she lived with him he told her it was a sin "to tell on a priest," and that if she ever "told on him she would go to hell or purgatory." She further swore