gross mismanagement and violation joshua M. Van Cott for applt.
of duty while acting as trustee may Albert Cardozo for respt.
be revived against his representa-
tives in case of the death of such

Held, The direct object of the proceedformer trustee pending such proceed- ing was to establish a personal liability ings.

against Hoguet, growing out of the alAppeal from order directing the repre- the order of the court stood across the

leged mismanagement of the trust, and sentatives of Anthony L. Hoguet, deceased, to be ma le parties, &c.

path of that proceeding. It was a comAnthony L. Hoguet was one of the plete answer to the claims and allegations trustees to carry out the provisions of the

of the cestui que trust, while it stood inwill of James Foster, Jr., and while act- tact as a record of the court. The equity ing as such trustee he presented his peti- powers of the court were broad enough to tion to be relieved from the trust, and

entertain a direct application on broader such proceedings were had that the prayer avoid the discharge for frand; and it was

grounds than would uphold a suit to of his petition was granted. Some time after the order to that effect had been en

not at all necessary to require the cestui tered, Mary E. Whittlesey, the cestui que que trust to resort to an action. In entertrust under the will, applied to have the taining the application and directing the proceedings by which Hoguet was dis- reference to ascertain the facts, the court

acted within its clear equitable powers, charged, opened upon allegations of an abuse of his trust in making improvident and the cestui que trust acquired rights and improper investments in respect of

in the proceeding of which she ought not which she claimed an accounting. On

to be deprived by the death of Hoguet. the application an order of reference was

The proceeding directly affected his estate, made to ascertain and report the facts.

which by his will is now in the hands of Pending the reference, and while the in the executors. It is not perceived that vestigation under it was proceeding, Hog any sound reason exists why the proceeduet died and the cestui que trust, Mrs. ing should not be continued. If sufficient Whittlesey, applied to have the representa

facts are established upon the reference to tives of his estate brought in as parties to call for the opening of the order it certhe proceeding by an order of the court, tainly ought not to stand with the force which should revive and continue the of a judgment to protect the estate of proceeding for that purpose. The order Hoguet from just liability to the cestui was granted, and the executrix of Hoguet que trust

. It is very true the provisions brings this appeal from the order.

of the Code and of the statute touching The proceedings by Hoguet for his dis. the revivor of suits are in strictness apcharge from the court was by petition un- does not deprive the court, we think, of

plicable to actions eo nomine. But that der the provisions of the Revised Statutes, its equitable powers over this proceeding and the proceeding upon the part of Mrs. Whittlesey to open the order and investi- to bring in the representative who has be

come interested in the question. gate the allegations upon which she asked it to be done, was by petition.

Order affirmed, with $10 costs. It was urged by the appellants that the Opinion by Davis, P. J.; Daniels, J., death of Iloguet arrested the proceedings concurring. Braily, J., dissents on the and deprived the court of all powers to ground that this proceeding to disturb the continue it. That the statute remedy order discharging Hoguet is not an action, was personal, and the person was with and therefore not embraced within the drawn by the death of Iluguet.

provisions of the Cole with referenc: to

rev.vor against representatives of a de- subject to the lien of a mortgige, ou which ceased party, which provision applies to the plaintiff, as assignze, has brought actions only, and that the court has no suit against the purchasers as terre tenjurisdiction to bring in the representations ants. The single question raised is, of Hognet in this proceeding.

whether by the operation of the act of

1867, the lien of the mortgage was diDISCHARGE OF MORTGAGE BY vested by the sale. JUDICIAL SALE.

Held, That the sale in partition dis

charg:d the lien of the mortgage; that SUPREME COURT OF PENNSYLVANIA.

by due process of law all rights of Wright v. Vickers, admr. of H. P. Mont. the mortgagor in this land have been gomery, with notice to James Goodchild extinguished. In due legal form their et al, terre-tenants.

exact equivalent in money has been Decided March 30, 1876.

obtained. This mɔney is the measure of A sale in partition discharges a mort. the value of the mortgagor's land on the

gage made by one of the co tenants one hand, and of the extent of the mortupon his interest. The act of March gugee's lien oa the other. Certainly there 20, 1867, does not prevent this. can be no hardship in a legal rule that

Error to the Court of Common Pleas of gives to a creditor the entire property the city and county of Philadelphia.

which he has accepted as the security for This was a sci. fa. on a mortgage given his debt. by H. P. Montgomery, who was a co

The order of the Court of Common tenant with other parties of certain real Pleas discharging the rule for judgment estate on South Broad street. The affi- for want of a sufficient affidavit of defense davits of defense stated that prior to the is aflirmed. execution of the mortgage a writ of parti

Opinion by Woolward and Pacon, J.J.; tion had been issued, and after the deliv- Agnew, C. J. and Shrral, J., dissentery of the mortgage a judgment quod ing. partitio fiat was entered and sale of the premises had been duly made thereunder.

USURY. SUBROGATION. The court below held the affldavits suffi

N. Y. COURT OF APPEALS. cient, and then the plaintiff sued out this writ of error.

Paterson, respt., v. Birdsall aüd wife, The act of 20th of March, 1867, con applts. tains a provision that the lien of a first Decided Feb. 25, 1876. mortgage shall not be destroyed or in any where a valid, subsisting mortgage way affected by any judicial or other sale

has been formally satisfied and diswhatsoever, whether such judicial or charged, and the amount thereof ino her sale shall be made by virtue or cluded in a new mortgage which authority of any order or decree of any

embraces other amounts, and the orphans' or other court, or of any

latter mortgage is declared invalid

as being usurious, the former mortwrit of execution or otherwise what

Here, lands in the ownership and the mortgegee in the second having of several tenants in common have

paid off the first, upon having his been sold under proceedings in partition mortgage declared voil for usury, is of the Court of Common Pleas. The un en sitled to subrog ition to the rights divided interest of Hardman Phillips of the first mortg iyee. Montgomery, one of the co-tenants, was This action was brought to enforce the

gage revives


subrogation of plaintiff to the rights of Geo. T. Spencer for respt. cne T, under a mortgage of $2,000 exe Geo. B. Bradley for applts. cuted to him by defendants, dated May

Held, no error: That a valid and sub14, 1849, which had been paid by plaintift

, sisting debt is not destroyed because inwho was a subsequent mortgagee, and who cluded in a security, or made the subject had a decree of foreclosure and sale upon of a contract void, either because violative his mortgage against defendants, for of the statutes against usury, or for other $2,102.81. The premises were bid in for reasons, although formally satisfied and that amount by plaintiff, and were con- discharged, and the security has been surveyed to him Oct. 30, 1858, and conveyed rendered, it may be revived and enforced back to defendant's wife, Nov. 1, 1858, in case the new security is invalidated and and she and her husband executed to avoided. 5 Wend., 595; 36 N Y., 520; plaintiff a mortgage for $5,311.81, which 37 id., 353 ; 39 id., 325; 56 id. 214; 6 included the amount bid at the foreclosure Seld., 189; that even if plaintiff, at the and sale, the mortgage tj T., which plain-time of consummiting the usurious acreetiff assumed, and $1,000 in addition. ment, had been the holder of the bond May 17, 1859, plaintift paid the T. mort- and mortgage in suit, and cancelled and gage and the interest thereon. In an surrendered it in pursuance thereof, it action by defendants against plaintiff, the would have been revived upon the annuldecree of foreclosure and sale, and subse- ling of the usurious agreement and securiquent conveyances, and the mortgage ty, and he could have entorced the same, from defendants to plaintiff, were declared subject to any intervening equities of to be void and were set aside on the third persons that might have come into ground of usury. Defendants gave in existence. Dewitt v. Brisbane, 16 N. Y., evidence an instrument executed by plain- | 508, and Schroeppel v. Corning, 5 Den., tiff, dated Nov. 1, 1858, reciting that he 236, distinguished. had conveyed certain premises to defend Also Held, That plaintiff, as a junior ant's wife, which were subject to a mort.incumbrancer, had a right to pay the gage of $2,000 and interest, and that mortgage and to be subrogated by assigndefendant's wife had executed to plaintiff ment, or act and operation of law, to the a bond and mortgage to secure the pur- rights of the mortgagee, in support of his chase money of said premises, and that equities, the usurious agreement may be said purchase money was understood to laid out of view as the moving cause of include the mortgage to T., which plain the redemption, and the mortgage, as tiff agreed to pay off. The complaint against the mortgagors, must be regarded alleged, and the evidence tended to show, as still existing. Story's Eq. Jur., 88 635, that the T. mortgage was not to be satis- 1,227; 3 Barb. 534 ; 4 Seld., 44; 42 N. fied, but was to be assigned and held as a Y., 89; 12 How. Pr., 67. lien on the premises until the payment of

Judgment of General term, affirining the mortgage to plaintiff. Defendant's

judgment for plaintiff, affirmed. counsel moved to dismiss the complaint. This motion was denied, the court holding

Opinion by Allen, J. that, although the money was advanced to pay the T. mortgage in pursuance of PROMISSORY NOTE. BONA FIDE

HOLDER an agreement that was corrupt and usurious, plaintiff had the right to subroga

SUPREME COURT OF MAINE. tion, and the mortgage was a valid lien in

Roberts v. Lane. his favor, and directed judgment for the relief demanded in the complaint.

Decided February, 1876.

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The bona fide holder of negotiable paper gave any reason for not indorsing the

can recover without regard to any notes, nor were they asked to indorse fraud in its inception.

them; that the cashier knew the law reOne who puts in suit a note shown to quired two names, and it was not customary

have been obtained from the maker by to discount without two; but that the fraud, assumes the burden of establishing his own good faith. It is bank had a surplus of money, the presiimmaterial what the plaintiff's dent liked the paper, and the cashier took knowledge may be, if any prior owner it and placed it in the drawer as cash ; whose rights he has was a bona fide that they took that course frequently to holder of the note.

get interest for the Penobscot Savings It does not affect the principles of law Bank when it had a large amount on de

above stated, that the note was made
to the maker's order and bore only posit in the Eastern Bank.
his indorsement, if it is shown that

The defendant being called upon to in fact it was purchased by the pay the note to the Eastern Bank, refused, plaintiff's predecessor in title, in on the ground that it was obtained from good faith, and for value, of him to him by fraud. The note lay in the bank whom the maker first gave it. drawer for a year, when the plaintiff, as

The defendant made a promissory note he testified, having heard what the talk February 15, 1871, payable to his own was about the paper, but regarding it as order in six months from date, indorsed the duty of the officers to see the bank it in blank, and passed it in payment of harmless, and as there was negligence on his subscription for some worthless stock, his own part in not having the notes inand he claimed that it was procured from dorsed, gave his check for the amount paid him by fraud, in which Leavitt and Smith, by the bank, and took the note as his the first known holders, were so far in. own. volved as to prevent them from sustaining

Held, 1. That the defendant's allegation an action upon it. No other name than of fraud in the inception of the note not the defendant's was upon the note.

having been traversed, the burden of The evidence shows that within five proof is on the plaintiff to show that he days after the note was made, it was offer-has the rights of a bona fide indorsee ; ed with others of like character, amount that he might do this by showing that he ing in all to something over $9,500, for himself, or any prior holder whose rights discount at the Eastern Bank, Bangor. he has, came by the note fairly for value The plaintiff is president of that bank, before maturity without knowledge of the and also of the Penobscot Savings Bank, fraud. which is a large depositor at the Eastern 2. That if any intermediate holder beBank. The cashier of the Eastern Bank, tween the plaintiff and defendant took who was also treasurer of the savings the note under such circumstances a3 bank, testified that the Eastern Bank would entitle him to recover against debought the note and paid Smith for it, right, even though he may have purchas

fendant, the plaintiff would have the same less the reasonable discount agreed upon, ed when the note was overdue, or with a by a check on the Eliot National Bank of knowledge of its infirmity as between the Boston, which was credited with the original parties. amount of the check February 20, 1871;

3. It makes no difference that it was that there was no private agreement or it passed by delivery and the title was ap

indorsed in blank by the maker, so that understanding with Smith, and no entry parently derived directly from him. ‘of the note upon the books of the Eastern Julgment for plaintiff. Bank; that neither Smith nor Leavitt Opinion by Burrows, J.

CONTRACT. DAMAGES. fendant understood that plaintiff would N. Y. SUPREME COURT, GENERAL TERM. make further advances for another year, FOURTH DEPT.

and that by reason of his refusal so to Steele et al. respts., v. Scott Lord applt. do defendant was obliged to sell out at a Decided January, 1876.

loss of over $10,000, and that owing to

the failure to make advances as above, and In the absence of fraud or mistake the also owing to unconscionable deductions

amount agreed upon between parties to a contract as to deductions for de- on account of defective sets, defendant fects must stand, and the fact that suffered the above loss. they were unreasonable makes no

The defendant, by his contract, allowdifference.

ed plaintiff to make deductions for defectParol evidence of drafts lost or de- ive sets but not to the extent claimed by

stroyed is admissible unless such loss the plaintiffs. or destruction was intentional and

Some of the drafts used in business and fraudulent. Test applied as to what facts a referee had been lost or disbursed, and the referee

in making up part of plaintiff's account, should or should not find at request allowed secondary evidence of their conof parties.

tents under defendant's objection. This is an action on an account, was

Held, That the defendant has no right tried before a referee, and there was a judgment for plaintiff.

to complain as to allowance for defective Defendant is a lawyer, and in 1869,

sets: they were made in pursuance of the he entered into a contract with plaintiff's in his answer admits that he consented to

very terms of the contract, and defendant to furnish them 6,000 sets of croquets at

them but not to the extent claimed by a certain sum per set, and subsequently a

plaintiffs. It was competent for the parsecond contract was made for 2,000 sets at a less price.

ties to agree as to the amount that should

be deducted, and in the absence of fraud The defendant in his answer sets up that he is a lawyer and had but little to or mistake, the amount agreed upon must

stand as the proper amount to be deductdo with the business, that when the first contract was made the plaintiffs, in order ed, and as to this item no fraud or mi

take is pretended. to induce defendant to enter into said con

That the loss or destruction of the drafts tract, represented to him that they could

did not preclude plaintiff from recovering procure from other manufacturers croquet sets of equal quality at as cheap The less which must preclude proof of the

on them as lost or destroyed instruments. rates as named in the contracts, that de- | fendant relied on these representations, contents of a written instrument must be and that they were wholly untrue, and he intentional and with the view of gaining claims damages for such false representa

an advantage by resorting to parol proof tions. The defendant also alleges the of their contents. Although the drafts same false representations as to the second were paid, parol proof of their contents un

der the circumstances, were admissible. contract. The defendant also alleges that he was &c., if he engages in business and in that

That, although defendant was a lawyer, at great expense in perfecting machinery business he enters into contracts, he is to make croquet sets, and had to procure advances from plaintiffs in advance of the bound, unless fraud is shown. The refusal

to make advances was no defence. delivery of sets, and that when the second

The r feree was requested by defendant contract was made it was for the purpose to find specific questions of fact and he of procuring further advances, and de- refused.

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