When the possession of property is obtained by artifice, with felonious design, the title remaining unchanged in the owner, it is larceny; but if the owner is deceived by fraudulent representations into surrendering possession and tille, it is not larceny, but false pretenses (11 N. Y. Sup. Ct. Repts., 511; 9 Car. and P. 741; 38 Em. C. L. 420; 53 N. 1.111).

According to these rules and authorities the prisoner could not be convicted of larceny. He should have been charged with obtaining money under false pretenses, unless it could be shown that com

plainant did not intend that the prisoner District of Illinois.

should become the owner of the bills at the time when he received them.

An action of debt on a judgment ren

cures him no such right. He should be kept in custody until a further trial of the present indictment can be had, or until an opportunity may be afforded of presenting the case to another grand jury, and he be placed on trial for obtaining money under false pretences.

He is not entitled, however, to be dis-dered in New York against plaintiffs in charged, because he has been tried for an record and several special pleas questionerror. Lybrand, pleaded separately nul tiel offense not committed by him: the case of McCord v. People (46 N. Y., 470) se-ing the validity of the judgment for want of jurisdiction over his person. The evidence the record of the New York plaintiffs on the trial simply gave in had appeared and answered for both dejudgment, which showed that an attorney fendants, who were sued as partners. The answer admitted the partnership, but set up various defences. A trial was had and judgment given for plaintiffs. This was the substance of the New York record. The plaintiff gave no further evidence. Lybrand then offered to prove that he, Lybrand, never was a resident, or citizen of the State of New York; and that he had not been within said State at any time since, nor for a long time before the commencement of the suit in which the judgment was rendered upon which vs. the plaintiffs in this case brought suit;

and that he never had any summons, process, notice, citation, or notice of any kind, either actual or constructive, ever

The present judgment must however be reversed and a new trial ordered.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concurring.


Hall and Lybrand, plffs. in error
Lanning et. al. defts., in error.

Decided October Term, 1875.

attorney for the firm in the suit in which the judgment was recovered. After the dissolution of a co-partnership, one of the partners in a suit brought against the firm has no authority to enter an appearance for the other partners who do not reside in the State where the suit is brought and have not been served with pro


In an action on a foreign judgment, the record of which discloses an appearance, it is competent for the defendant to show the appearance was unauthorized.

Error to U. S. Circuit Court, Northern

A judgment recovered against co-part-given or served upon him; and that he ners in one State cannot be enforced never authorized any attorney or any in another against a partner not

personally served with process and other person to appear for him; and that not residing in the State where the no one ever had any authority to appear judgment was obtained, though his for him in said suit in the State of New co-partner, after dissolution, may York or to enter his appearance therein, have authorized an appearance by nor did he ever authorize any one to em

ploy an attorney to appear for him there- | The authority of a partner to enter an in; and that he never entered his appear- appearance for his co-partners, even durance therein in person; and that he knew ing the continuance of the firm, is quesnothing of the pendency thereof until the tionable. The assertion of such an aucommencement of the present suit; and thority in Gow on Partnshp., p. 163; that said Lybrand was a partner in busi- Collyer on Partnshp., § 441; Parsons ness with his co-defendant at the time on Partnship., 174; note commented the transaction occurred upon which the upon and doubted. plaintiffs brought suit in New York, But domestic judgments, where they though said partnership had been dis- are sought to be enforced in their own solved and due notice thereof published State, stand upon a different footing from some six months prior to the commence foreign judgments. If regular upon their ment of said suit in New York. face, and an appearance has been duly entered for the defendant by a responsible attorney, though no process has been served, and no appearance authorized, they will not necessarily be set aside. In any other State, however, the facts could be shown, notwithstanding the recitals of

Held, 1, That the jurisdiction of a foreign court over the person or the subject matter embraced in the judgment or decree

of such court is always open to enquiry; the record, and the judgment would be regarded as null and void for want of jurisdiction of the person. Judgment reversed. Opinion by Bradley, J.

that in this respect the court of another State is to be regarded as a foreign court; that the record of such a judgment does not estop the parties from demanding such an enquiry, and that, therefore, the rejection of defendant's offer was erroneous. (Thompson v. Whitman, 18 Wall. 457; Knowles v. Gas Light Co., 19 Wall. 58.)

This evidence being objected to was over-ruled by the court, which directed a verdict for plaintiffs.



2. That a member of a partnership, residing in one State, cannot be rendered In the matter of the application of personally liable in a suit brought in Mary Elizabeth Jackson, an infant, for another State, against him and his co-leave to sell her real estate. partners, although the latter be duly Decided January 28, 1876.

served with process, and although the law of the State where the suit is brought authorizes judgment to be rendered against him, and that his co-partners after dissolution cannot, without his authority, implicate him in suits brought against the firm by voluntarily entering an appearance for him.

3. That the relation of partnership does not confer upon each of the partners authority, after dissolution, to appear for his co-partners in a suit brought against the firm even in a domestic court where they are not served with process and have no notice of the suit.

The findings of a referee in proceedings for the sale of infant's land are representations to a purchaser upon which he may rely.

An act done or a contract made under
a mutual mistake or ignorance of
a material fact, is voidable and re-
lievable in equity.
Rule applied to a peculiar case.

Appeal by Henry S. Hewson from an order denying his application for compensition for a partial failure of title to land purchased by him in these proceedings.

The petition of Henry S. Hewson showed the following facts: That in the year

1869, an application was made by Mary tween the one-half which Hewson supposed he was buying and the one-third which he actually bought, to-wit, the sum of $11,166.66, be refunded to him.

Elizabeth Jackson, an infant, through her next friend, for leave to sell her real estate. The petition showed that said infant, as grand-daughter and heir-at-law of one Lewis Jackson, was owner of an undivided half of certain property located in 53d street, New York City, that such land was unproductive and that it was for the interest of the infant that the land should be sold for the benefit of such infant. One Townshend was appointed special guardian for such infant, and the matter was referred to a referee to take proof of the facts set forth in such petition and report to the court. Proofs were taken by the referee, who reported that the facts stated in the petition were true that Mary Elizabeth Jackson, as heir-atlaw of Lewis Jackson, was the owner in fee of an undivided one-half of the property described in the petition, and that

Upon the foregoing facts appearing, the application to have the money refunded was denied and this appeal taken. S. V. R. Cooper, for appelt. John Townshend, Guardian in person. Held, That the fact found by the referee in the proceedings to sell, with reference to the interest of the infant, was equivalent to a representation to whoever might become the purchaser in the proceedings that the interest proposed to be sold was an undivided half of the land, subject to the widow's estate in dower. The sale of the infant's interest is made with the understanding that such interest has been accurately ascertained by the report of the referee, and upon that basis the purchaser buys.

That in this case the purchaser relying it was for the interest of the infant that the land be sold, &c. On the coming in upon the representation in the petition and confirmation of the report of the and report aforesaid, as well as the other referee, the special guardian was author- parties to the proceeding, were involved ized to enter into a contract for the sale in a mutual and material mistake, by of the right of the infant in the premises, which the purchaser was led to pay at the which such guardian afterwards did, and sale one-third more than he otherwise upon his report T., the guardian, was would have paid. The general rule of directed to convey the interest of the in- equity applicable in such cases is, "That fant in the premises to Henry S. Hewson. an act done or contract made under a Such conveyance was made and the pur- mutual mistake, or ignorance of a matechase-money, $3,500, paid to the special rial fact, is voidable and relievable in guardian by the purchaser. After the sub-equity." And if one of the parties innosequent conveyance by Hewson the pur- cently misrepresents a material fact by chaser, by full covenant warranty deeds mistake it is equally conclusive, for it of this property and after the conveyance operates as a surprise and imposition upon of same premises by Hewson's grantee, the other party.-(1 Storys. Eq. Pr., 11th an action of ejectment was brought by Ed., §§ 140, 147, 193 and 994 and cases one Georgianna L. Jones, by which it cited.) was adjudged that she, as only child of Geo. L. Jackson, son of Lewis Jackson deceased, was entitled to an undivided third of the premises aforesaid, purchased by Hewson as aforesaid. Upon such adjudication Henry S. Hewson, the petitioner herein, makes this application that the difference in the purchase price be

In Carr v. Carr 3 Simons 447, such relief as is sought by the present application was granted.

The order made should be reversed and an order entered confirming the referee's report and directing the amount found to be equitably due to the purchaser, to-wit, $1,166.66, be reimbursed to him with in

terest without costs under the circum- the builder consisted only in having built stances. a fence around the lot and furnishing Opinion by Daniels, J.; Davis, P. J., some lumber which lay upon the premises, and Brady, J., concurring. amounting in all to about $800; but he afterwards proceeded with his contract, and finally acquired a lien for many thousands of dollars.


The work was done under an oral contract with F., made prior to the acquisiMiddletown Savings Bank v. Fellowes. changes and from various other causes, tion of the title by him, but through Decided February, 1875.

the completed work very largely exceeded


Connecticut that the land records should show the title to real estate; this is a wise and salutary policy to be enforced, unless


A mortgage given upon the acquisition the amount originally cont of title has precedence of a me- both parties. chanic's lien, acquired by reason of labor on, and materials furnished titled to priority. It is well settled in Held, That the mortgage lien was ento the premises under a contract with the mortgagor, who at the time the labor and materials were fur nished had a contract for, but no title to, the premises. Whether bringing materials upon the premises, and building a fence around the lot would be sufficient to establish a lien, quære. The work done having far exceeded the price agreed upon at the time of the taking of the mortgage, whether, if the builder's lien had had precedence, it could have covered more than work agreed upon, quære.

Bill to foreclose a mortgage.

S., the owner of a house and lot, contracted to sell it to B., who thereafter contracted to sell it to F.

While S. still held the title and possession, F. employed a builder to make extensive repairs and improvements on the place. The builder, by permission of S., went upon the premises and commenced work.

About three weeks later, S., B. and F. met, and S. made a deed directly to F., who at the same time and as a part of the transaction, made a mortgage to the plaintiff for money actually loaned, the plaintiff having no knowledge of the builder's lien, and the mortgage being made under a previous agreement of F. to make it on acquiring title. At the time of the conveyance and mortgage, the work done by

contrary; that the plaintiff stands subare controlling reasons to the stantially as though the mortgage had been given it by S. The acquisition of the title, legal and equitable, to the premises, by F., and his mortgage of the same in fee to plaintiff, was all one transaction, so that if the builder had, prior thereto, furnished materials or had done work which would entitle him to a lien, there was no point of time in which that lien could slip in and take precedence of the mortgage. No work having been done upon the buildings, but only on the fence around the lot, there are serious doubts, to say the least, whether that furnished grounds for a lien.

The amount actually expended in work and materials was largely in excess of what either party anticipated at the commencement. It is by no means certain that, had the original understanding as to the amount of expenditure, been carried out, the property would not have been ample to pay both these encumbrances. Whether or not the mechanic's lien could, equitably, be thus increased to the prejudice of the mortgagees; quære? Judgment for plaintiff. Opinion by Foster, J.



Haines, et al, respt. vs. Hollister,
adm'r'x., &c., et al, applts.
Decided January 18, 1876.

able, as any creditors of the assignee could compel an accounting.

To entitle a defendant to demur on the ground of a defect of parties, the defect must be apparent (Code § 144); if a defect not apparent actually exists the ob

In the action against a firm of which

§ 147).

one of the partners is dead, the adjection should be taken by answer (Code, ministratrix of the deceased partner is a proper party defendant. So also is the assignee of the firm where an accounting is prayed for.

A demurrer on the ground of a defect of parties will lie only where the defect is apparent; otherwise the objection must be taken by answer.

W. F. Cogswell for applt.
Holmes & Fitts for respts.

Also held, That the action being of an equitable nature all the defendants were proper parties, and had a right to be notified of the proceedings.

Held, That there was no error in joining the administratrix of the deceased partner with the surviving members of the firm, 2 Den. 577; 16 Barb. 44; 43 N. Y., 68; 55 Id., 12. The assignee of the firm was also a proper party defendant.

It was also objected on the part of the assignee that the other creditors should have been made parties to the action. There is nothing in the complaint to show that there were other creditors.

Held, That this objection was not ten

Judgment of General term, affirming order of Special term overruling demurr

ers, affirmed.

This action was brought to recover a balance due on two promissory notes given by a firm of which defendant's intestate was a member. The firm having become insolvent an assignment was made, with the consent of defendant's intestate, to S., who it appears has never accounted. The members of the firm, the administratrix and the assignee were made parties defendant. Plaintiff claimed that the assignee should account, and asked for judgment for any balance remaining due after the accounting by the assignee against the surviving members of the firm, and against the administratrix of the deceased member, or

for such other relief as might be equita- A failure to remove the personal prop

ble. Defendants demurred to the complaint on the ground of an improper joinder of causes of action.

erty does not vitiate the execution of the writ, provided the possession is delivered.

Opinion by Miller, J.


N. Y. COURT OF APPEALS. Witbeck, applt, v. Van Rensselaer, et al., respts.

Decided January 25, 1876.

A command in a writ of possession to return it within sixty days is directory only. The office of the writ is to carry the judgment into effect and can be executed after the return day.

A re-entry by the tenant will not enlarge the time for redemption.

This action was brought to redeem a farm held by plaintiff under one of the Van Rensselaer leases from a forfeiture under a condition of re-entry. It appeared that plaintiff refused to pay any rent, and or being sued in ejectment for non-payment of rent still refused to pay, and judgment of ejectment was entered against him in July, 1863. Plaintiff having refused to recognize the judgment, a writ of possession was issued to the sheriff January 17, 1867, returnable sixty days thereafter. On February 25, 1867, a stay of proceedings

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