« ForrigeFortsett »
Held, That the test by which to deter- the custody of the bail by an order of ar. mine whether the referee should find the rest, at the suit of the people in a civil facts which he was called on to find is, action under which he was imprisoned in are they material, or were they mere items default of bail until he escaped thereof evidence not proper subjects for spe- from. cific findings, and the referee's refusal was 4. That there were six indictments for correct.
forgery in the Oyer and Terminer found Judgment affirmed.
on the same day, and if the recognizance Opinion by Mullin, P J.; Smith, and in question was intended to refer to any Gilbert, J. J., concurring.
of them, it does not distinguish which,
and is therefore void for uncertainty. BAIL.
Dudley Field for Relator.
B. K. Phelps, District Attorney.
Held, the condition of the recognizance The People of the State of New York Court of General Sessions of the Peace, to
is for the appearance of Tweed at the ex. rel. Charles Devlin, v. the Court of
answer said indictment against him at the Oyer and Terminer.
present term, or at any subsequent term Decided March 6th, 1876.
of said Court, or to any Court where The Court of Oyer and Terminer will such indictment might be sent for trial. not ordinarily consider on motion to
No point seems to have been made that have recognizance declared forfeited, the Court of Oyer and Terminer had facts which go to the question merely not acquired jurisdiction of the in lictas to whether the recognizance could be enforced, or whether certain facts ment, if any such had been found in the constitute a valid defence in favor Court of General Sessions, but it is alleged of the bail.
that none such had ever been found in These are questions of fact for trial be- that Court. fore a proper tribunul.
If this was a question upon which the Forfeiture of recognizance, &c. recognizance did not operate as an estop
Certiorari to the Court of Oyer and pel against the defendant, is was one of Terminer on review of proceedings upon fact to be tried and determined by some forleiting recognizance of William M. tribunal, and the same thing is true of Tweed, principal, and Charles Devlin as each of the other objections. surety.
With reference to the objection that it is The objection urged to the order de left uncertain to which of the six indictclaring the recognizance forfeited, urged ments found in the Court of General at the Oyer and Terminer, and upon the Sessions the recognizance was intended present appeal were:
to refer, and it was therefore void for un1. That the recognizance purports to certainty; the objection seems to us io be be given under indictments against the without substance, because the recognizprincipal in the General Sessions, when, ance refers to but one, and the producin fact, the indictment was in the Oyer tion of Tweed under the recognizance and Terminer.
would discharge the suit completely, 2. That the recognizance was not for whatever number of indictments might be mally continued by order from one term in existence. of the Court of Oyer and Terminer to
The alleged uncertainty wils entirely
harmless, since the condition of the recoganother.
mizance required the production of the 3. That the principal was taken from principal to answer but one indictment,
and that being done, there would be no 20th, while suit was brought on the 10th. obligation to produce him upon another. Plaintiffs denied any such agreement but
If the Court might in its discretion alleged that a part payment had been have considered the fact alleged in deter- made on the 9th ; that one of the defendmining the question whether the order of ants advised the attachment and offered to forfeiture should be made yet, the relator point out their goods, which he afterwards had, we think, no such legal right, under did, and that two days after the attachthe circumstances, to demand the exer- ment defendants made a general assigncise of that discretion, as would entitle ment for the benefit of creditors. him to review the proceedings on a writ Two of the three witnesses for the defendof certiorari. His rights are, we think, ants who swore to affidavits relative to the fully preserved, and may be enforced by above agreement, upon a compulsory exthe proper application to the Court of amination, admitted that the agreement Common Pleas.
was not within their personal knowledge The writs should be dismissed with but that their statements were founded on costs.
hearsay. Opinion by Davis, P. J.; Brady and Attachment was at Special Term vaDaniels, J. J., concurring.
A. R. Dyett, for applt.
Robert S. Hart, for respt.
Held, That the fact that defendants FIRST DEPARTMENT.
have a place of business in New York Wallace & Sons, a corporation, applls. City does not make them residents of this v. Castle et al, respts.
State, except for purposes of an action in A place of business in N. Y. City does the District Courts in said city. As to not constitute one a resident of this
the existence of a cause of action at the State, except for the purpose of an action in the N. 1? City District time when the attachment was issued, Courts.
there seems to be some conflict in the afDecided March 6, 1876.
fidavits. The point urged by defendants
in their affidavits that there was 3 special Appeal from order of Special Term Val
agreement whereby their time was extendcating attachment.
ed to the 20th of the month, does not At the commencement of this action
seem to be sustained by their own witnesplaintiffs obtained an attachment on the ground of defendarit's non-residence and ses, most of whom, on a compulsory exthereunder levied upon certain of defend- amination, admitted that their informa
tion on this subject was by hearsay. ants' property.
Defendant's affidavits failing for these On their application to vacate the attachment defendants, who are residents of reasons, there is no difficulty in saying Connecticut and New Jersey, showed that that the weight of proof is strongly with they had a place of business in the city of plaintiffs. The payment by defendants New York and claimed that they were of a part of this claim on the 9th, and residents within the meaning of the law the advice of one of them in recommendas to attachments, and by three affidavits ing an attachment and offering to point sought further to show that the amount out the goods, and his doing so when the sued for was not due when suit was brought cumstances strongly corroborating plain
sheriff came with the attachment, are ciras by special agreement the original time of tiff's claim that the account was actually payment, Aug. 1st, was extended to Aug. due.
Order vacating attachment set aside N. A. Halbert, for applts. and motion to vacate denied.
S. R. Ten Eyck, for respts.
Held, error, that the bequest was not absolute nor a valid life estate, but it was
the intention of the testator to empower BEQUEST.
his widow to expend out of the principal N. Y. COURT OF APPEALS.
of the fund bequeathed what should be Smith et al. applts. v. Van Nostrand necessary for her support, and the bequest respt.
of the remainder to his children was subDecided February 25, 1876.
ject to the exercise of this power, and they A bequest of money to a legatee for her would be entitled only to what remained
support during her natural life and over and above what she had used for with power to use so much of the the authorized purpose; that the gift of principal as might be necessary for the remainder over to his children was not that purpose, with a remainder over repugnant to the gift to the wife, and was to the testators children, is valid.
valid. 1 P. Wms., 651; 5 Madd., 123; It is competent for the testator to make the life legatee custodian of the mon
47 N. Y., 512; 16 id., 83. ey, in which case such legatee becomes
Patterson v. Ellis, 11 Wend., 259; the trustee for the children.
Hill v. Hill, 4 Barb., 419; Tyson v. This action was brought to recover cer- Blake, 22 N. Y., 558; and Norris v. tain U, S. bonds in the hands of defend- Beyea, 3 Kern, 286, distinguished. ant. The complaint alleged that the will
Also held, It is within the power of a of G. I. S. contained this clause; “I give testator, in bequeathing a life estate in a and' bequeath unto my beloved wife sum of money, with a remainder over, to Catharine, the sum of $1,650, in lieu of confide the money to the legatee for life, dower in my real estate, for her support in which case such legatee becomes the during her natural life, or as long as she trustee of the principal. That plaintiffs remains my widow; then her said dower being the cestui que trust, were the shall be transf-rred to my three children proper parties to claim the fund that the hereafter mentioned. $50, of the above executors having paid it over to the widow named sum shall be paid to her as soon as as directed by the will, parted with all practicable after my decease, and the re- interest in it, and left it to follow the mainder, on or about six months after;" course directed by the will, and were disthat the widow purchased U. S. bonds charged from all liability and divested of with this money, it having been paid over all power concerning it. 1 P. Wms., 651. to her by the executors of G. I. S., and Judgment of General Term affirming held them up to the time of her decease. judgment of nonsuit reversed, and new That some time before or after her death, trial granted. defendant became the custodian of the Opinion by Rapallo, J. bords, without value, and merely as the friend or agent of said widow; that plain
TOWN BONDS. ESTOPPEL. REtifts notified him after her death that the
CITALS. bonds were their property under the will, and demanded them of defendant, but
U. S. SUPREME COURT. that he refused to give them up. No ev
The Town of Coloma, Plaintiff in Eridence was introduced except the will of ror, vs. David W. Eaves, Def't in Error. G.I. S. The complaint was dismissed on
Decided March, 1876. the ground of no cause of action. Where legislative authority has been
given to a municipality, or to its offi- scribe to the capital stock of said compacers, to subscribe for the stock of a ny.” That the town of Coloma was one railroad company, and to issue mu- of the municipal divisions empowered by nicipal bonds in payment, but only this section to subscribe fully appears, on some precedent condition, such a popular vote favoring the subscrip- and also that the railroad was built into tion, and where it may be gathered the townbefore the bonds were issued from the legislative enactment that But it is upon the eleventh section of the the officers of the municipality were act that the defendant relies. That secinvested with power to decide whether tion is as follows: the condition precedent has been com “No such subscriptions shall be made plied with, their recital that it has until the question has been submitted to been, made in the bonds issued by the legal voters of said city, town or town, them and held by a bona fide pur- ship in which the subscription is proposed chaser, is conclusive of the fact ani binding upon the municipality, for to be made. And the clerk of such city, the recital is itself a decision of the town or township is hereby required, upfact by the appointed tribunal. on presentation of a petition signed by at
In error to the Circuit Court of the least ten citizens, who are legal voters and United States for the Northern District tax-payers in such city, town, or townof Illinois.
ship, stating the amount proposed to be It appears by the record that the snbscribed, to post up notices in three plaintiff is a bona fide holder and owner public places in each town or township, of the coupons upon which the suit is which notices shall be posted not less than founded, having obtained them before thirty days prior to holding such election, they were due and for a valuable consid- notifying the legal voters of such town or eration paid. The bonds to which the township to meet at the usual places of coupons were attached were given in pay- holding elections in such town or townment of a subscription of $50,000.00 to ship, for the purpose of voting for or the capital stock of the Chicago and Rock against such subscriptions. If it shall River Railroad Company, for which the appear that a majority of all the legal votown received in return certificates of five ters of such city, town or township voting hundred shares of $100.00 each, in the at such election have voted 'for subscripstock of the company. That stock the tion,' it shall be the duty of the president town retains, but it resists the payment of of the board of trustees, or other executhe bonds, and of the coupons attached to tive officer of such town, and of the suthem, alleging that they were issued with pervisor in townships, to subscribe to the out lawful authority.
capital stock of said railroad company, in By an act of the legislature of Illinois, the name of such city, town, or township, the Chicago and Rock River Railroad the amount so voted to be subscribed, and Company was incorporated with power to to receive from such company the proper build and operate a railroad from Rock certificates therefor. He shall also exeFalls, on Rock River, to Chicago, a dis- cute to said company, in the name of such tance of about one hundred and thirty city, town or township, bonds bearing inmiles. The tenth section of the act en- terest at ten per cent.
per annum, which acted that “ to aid in the construction of bonds shall run for a term of not more said road, any incorporated city, town, or twenty years; and the interest on the township, organized under the township same shall be made payable annually; and organization laws of the state, along or which said bonds shall be signed by such near the route of said road, might sub-president or supervisor, or other executive
officer, and be attested by the clerk of the parish of Orleans. This suit is brought city, town or township in whose name by the Louisiana National Bank against the bonds are issued.”
the Citizens' Bank to recover the amount Section 12 provides, “It shall be the of a check drawn by the Bank of Mobile, duty of the clerk of any such city, town, purporting to be for twenty-seven hunor township in which a vote shall be given dred dollars, but which had been frauduin favor of subscriptions, within ten days lently raised from a smaller amount, and thereafter, to transmit to the county clerk paid in ignorance of the forgery by the of their counties a transcript or statement Louisiana National Bank, on which the of the vote given, and the amount so vo- check was drawn. The answer of the ted to be subscribed, and the rate of in Citizens' Bank is the general issue; it terest to be paid."
avers the check was deposited in the The bonds issued contained a recital of Citizens' Bank by and for account of the their use; that they were issued by au- New Orleans Savings Institution, which thority of a certain act, and that the elec- institution is called in warranty. The tion had been held, and that the requi- answer of the Savings Institution is the site number of voters had voted, etc. general issue, and the special defence that
Held, That it appearing by the recitals the Savings Institution took the check on in the bond that the conditions upon deposit and paid out on account of it which the bonds were to be issued had upon the faith of the certification that it been fully complied with, the municipality was “good” put upon the check by the could not go behind them to show irreg- Louisiana National Bank. There is no ularities in the election, or that no elec- dispute about the facts. The bill of extion was held, or whether there had been change or check was drawn by the Bank a compliance with this regulation, condi- of Mobile, but the amount thereof had tion or qualification under which the been raised from $27 to $2,700 before it bonds were authorized to be issued; that was presented to the Louisiana National under the laws empowering the town to Bank of New Orleans for certification; issue the bonds, the officers designated to and the New Orleans Savings Institution, sign and deliver them were made the and the Citizens Bank received and paid judges of whether or not the necessary their money for it, after the Louisiana prerequisites to their issue had been com- National Bank had certified that it was plied with, and that a bona fide purchaser “good.” need not look beyond their decision as Held, The certifying bank is bound to contained in the recitals.
pay; the check having come to the hands Judgment affirmed.
of defendants after certification, it had a Opinion by Strong, J.
right to rely upon the genuineness of the check.
Judgment reversed and judgment orRAISED CHECK. FORGERY. dered in favor of defendant with costs.
SUPREME COURT OF LOUISIANA. Opinion by Ludeling, C. J.
REPLEVIN. UNDERTAKING. Bark.
N. Y. SUPREME COURT, GENERAL TERM,
FOURTII DEPARTMENT. A bank having certified a raised check
as good, is bound to pay it to an in Harrison survivor appli. v. Utley and nocent holder.
another respts. From Superior District Court for the
Decided January, 1876.