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VOL. 2.)

MONDAY FEBRUARY 14. 1876.

NEW YORK WEEKLY DIGEST. ing house of the New York Gold Ex

change. [No. 1.

The next day (Black Friday), was a AGENCY.

day of extreme confusion, and parties N. Y. SUPREME COURT-GENL. Teru., be settled on that day through the defend

having outstanding contracts in gold to FIRST DEPT.

ant, were requested by defendant's presFowler, et al. respts. v. The New York ident to clear outside of the defendant as Gold Exchange Bank, applt.

a clearing house. Decided December 30, 1875.

J. Brown & Co. acted on this request A principal who ratifies the act of a and settled all their contracts outside of

voluntary agent who receives money the defendant. for his principal and makes a loan J. Brown & Co. immediately intending in his behalf as a condition of such to settle outside the bank and deliver receipt, is entitled to receive the money 80 paid to the agent upon the the gold, sent to Chase, McClure & Co. repayment of the loan made by the to say that they, J. B. & Co., wished Agent.

them to pay for the $50,000 gold they A voluntary agent is entitled to be had bought from them at $1.411. Chase,

reimbursed for expenses incurred in McClure & Co. referred J. B. & Co. to behalf of his principal, on the rati- Chapin, Bowen & Day, who they said fication by the principal of the would pay for it and take the gold. On agent's act.

going to Chapin, Bowen & Day they inThis appeal is from a judgment in formed J. Brown & Co. that they, C. B. plaintiff's favor, for $94,255 todo upon & D., had given the currency due to the the report of a referee.

defendant, and obtained from the defendThe facts out of which the action arose ant $50,000 gold which they were to reare as follows: On September 23, 1869, ceive. the day before what is known as "Black When the contract was made it was exFriday,” the plaintiffs composing the pected to be settled through the defendfirm of Fowler Brothers, wishing to sell ant. The practice in such settlements $30,000 of American Gold, gave an order was as follows: The parties selling sent to James Brown & Co., brokers, to sell a ticket to the defendant requesting the that amount of gold for them. J. Brown defendant to deliver the amount of gola & Co. on the same day executed this or- sold and receive the amount of currency der, and sold for plaintiff's account fifty- thereon specified, and the party purchasthousand dollars gold coin for settlementing sent a ticket or request to the defendon September 24, 1869, the next day at ant to receive the amount purchased and $1.414 in currency for each dollar of pay the price in currency specified. gold coin, such sale being to the firm of These tickets authorind the defendant to Chase, McClure & Co. On the same day perform the requests contained in them. J. Brown & Co. gave, and plaintiffs re But J. Brown & Co. having sent in no ceived in due course of business, notice statement and acting on the request of of such sale.

defendant's president to settle outside, Chase, McClure & Co. on the same endeavored to settle accordingly. But day gave up to J. Brown & Co. the name of the tickets in this transaction with Chase, Chapin, Bowen & Day as the parties who McClure & Co., having gone into the would receive and pay for the gold in bank, the defendant, and not recalled or lieu of themselves, and the substitution withdrawn, through inadvertence and was accepted. Defendant was the clear-'the confusion and excitement then exist

ing, this contract was settled by defend- probable that the defendant was put to ant for account of the parties thereto. any expense or made any advance for

Plaintiff's brokers applied to the bank the purchase or procurement of the gold. for the currency. The defendant did not It was drawn out of the fund it had on comply with the demand and stated they hand for clearing purposes. The findwere in the hands of a receiver. The ings of the referee are supported by the plaintiff's being unable to settle the matter evidence, and support his conclusions of amicably, made a tender to the defendant law. on the 30th of September, 1869, of $50, Judgment affirmed. 000, of gold coin, and demanded the $70,

Opinion by Daniels, J.; Davis, P. J. 625, received for their account by defend

and Brady J. concurring. ant.

The defendant refused to receive the gold or deliver the currency, whereupon this action was brought. On the foregoing facts, the referee found judgment

ARBITRATION. for plaintiff.

N. Y. SUPREME COURT.-GENL. TERM, F. F. Marburg, for respts.

FIRST DEPT.
W. H. Scott, for applt.
On appeal,

Walter S. Pierce, et al., applt., v. Mor

risson, respt. Held, That the defendant had voluntarily paid from the resources in its hands Decided December 30, 1875. $50,000, gold coin, and received for Although one member of a firm cannot plaintiffs through their brokers $70,625, bind his co-partners by submission to in currency. No want of diligence on

arbitration without direct authority, the part of plaintiff to deliver the gold any expression of intent to give such under the circumstances can be claimed.

authority by the non-signing partner The advancement of the gold was sub

is sufficient to bind him. stantially a loan of it by the defendant. The intendments are in favor of the to Brown & Co. for plaintiffs, and upon

validity of an award. the tender by J. B. & Co. of the $50,000 Action brought to recover the sum of gold, they had the right to receive the $2,270.67, claimed to be due the plaintiffs $70,625, currency, in the hands of the de- from defendant on an arbitration and fendant belonging to the plaintiffs. award.

If the gold had been purchased by the The plaintiff's, Walter S. Pierce and defendant, or procured from some other Junius J. Pierce, composed the firm of source by which it was subject to expense Walter Pierce & Co., and one of the plainin the transaction in its conduct as agent tiffs, Junius J. Pierce, and defendant for the plaintiffs or their brokers, J. composed the firm of Pierce, Morrisson & Brown & Co., the principal, J. B. & Co., Co. The latter firm was dissolved July on the ratification of an act of that na- 26th, 1872. ture, would probably become bound to On the same day an agreement was protect and fully reimburse the agent, made between the said plaintiff, Junius the defendant. But it was not even al- J. Pierce, and Edward H. Morrisson, the leged in its answer, or in any of the defendant, as to the terms of dissolution interviews shown by the evidence, that of their firm of Pierce, Morrisson & Co. defendant had been subjected to any In and by the agreement the defendantexpense or trouble whatever in obtaining agreed with his co-partner, the plaintiff, the gold delivered to it; and it is not Junius J. Pierce, to assume and pay “ all

the indebtedness of whatsoever nature been sent to the defendant, on application there may be of said firm, in full.” to him by plaintiff, Walter S. Pierce, for

Subsequently, on October 4th, 1872, payment of the amount awarded, he made said Junius J. Pierce and the defendact an unqualified promise to pay. entered into another agreement, which

A. II. II. Dau'son and J. S. L Crimrecited the agreement of July 26th, 1872, for dissolution also, that the accounts be minys, for applt.

E. T. Hyatt and Thomas Allison, for tween Pierce, Morrison & Co., (the dis

respts. solved firm) and Walter S. Pierce & Co., were unsettled and the balance unascer Held. Although the weight of authoritained, and provided that for the purpose ty may be in favor of the rule that one of ascertaining such amount, in case partner cannot bind his co-partners by Junius J. Pierce and E. H. Morrison submission to arbitration, yet any mancould not agree thereon, the settlement ner of actual authority given by one partthereof should be referred to the plaintiff, ner to his co-partners will be sufficient to Walter S. Pierce and one R. M. Watrus, bind the firm. It is enough whatever its with power if they could not agree to se form, if it contains a distinct expression lect a third party to decide between them, of the intent to allow the partner acting whose decision should be final. This to do it for him. In this case the partner agreement then provides that upon the who signed the agreement represented the ascertainment of the amount of said in- firm in signing it, and signed it with the debtedness by either of the above men- knowledge and consent of his co-partner, tioned means, one David Clopton, the de- Walter S. Pierce, established by his prespositary of an accepted draft, was author- elice and participation in the arbitration ized and required to apply the same or so proceeding. The non-signing partner much thereof as might be necessary to having consented to and authorized the the payment of said amount.

signing by the other, and having subseIn consequence of the last named quently ratified the deed thus done, by agreement, the arbitrators and umpire acts and words, rendered the submission made an award, that E. H. Morrison mutual and binding on both him and the should pay Walter S. Pierce & Co., defendant. $2,270.67 and also decided certain other That the award embraced the subject questions.

confided to the arbitrators. The answer set forth the written instru

The intendments are in favor of the ments set forth in the complaint and validity of an award. The referee erred claimed the said award was void.

in rendering judgment for the defendant. The plaintiffs, to maintain their case,

New trial ordered, costs to abide the put in evidence the instruments alleged event. in the answer.

Opinion by Brady, J.; Davis P. J. and The defendant moved for judgment on Daniels, J. concurring. plaintiff's proofs.

Upon the referee's report in defendants' favor judgment was entered.

The agreement of October 4th, 1872, BANKRUPTCY. EXEMPTION providing for the arbitration was signed

U.S. DISTRICT COURT, GEORGIA. by J. J. Pierce, but with the knowledge and consent of the co-partners.

In re Stewart and Newton, 13 N B. It was proved on the trial before the

R. 295. referee, that after a copy of the award had | No individual exemption can be alloro

ed out of a partnership estate at the that he had a right to reserve enough to expense of the joint creditors.

pay the expenses of his family for a reaThe firm of Stewart & Newton, and sonable time. Stewart individually, were bankrupts. The Held, Brown, J., 1. That as the payment partnership estate reduced to cash to counsel was made at the time the seramounted to $1,000. Stewart, as the head vices were performed, that a bankrupt had of a family, claimed this amount as ex- a perfect right to employ counsel and to empt under the bankrupt act, and the pay him, such • payment ought not to be State constitution and laws.

regarded as a preference or a fraud on the Held, Erskine, J., notwithstanding the act; that the preparation of the petition courts had entertained conflicting views and schedules was a work requiring skill, upon this subject, the weight of authori- and as it was the duty of the insolvent ty was against the allowance of the claim upon discovering his irisolvency to go into here advanced.

bankruptcy, it was quite proper to em(in re Handlin,) 12 N. B. R. 49.

ploy counsel and pay him. It might be otherwise if the service had been performed on credit and the money afterwards paid. The question of preference might

then arise. BANKRUPTCY. PREFERENCE.

2. That the debtor has no more right EXEMPTION.

to receive or reserve the cost of profesU. S. DISTRICT COURT, E. D. MICHIGAN. sional services to be rendered after his In Re James Thompson.

adjudication than to reserve money for 13 N. B. R. 300.

any other future purpose.

3. That the word “ necessaries” in secPayment to counsel for services in pre. tion 5,045 of the act, includes money, and

paring bankrupts' petition and schedules is not preferential.

that the assignee-taking into view all Bankrupt is entitled to an allowance in the circumstances of each case-can, sub

money from his estate for the tem-ject to the final decision of the court, alporary support of himself and fami- low the bankrupt such sum from the ly, not exceeding, with his furniture estate as he may deem proper for the temand other articles, five hundred dol- porary support of the bankrupt’s family, lar's.

not exceeding, with his furniture and Ile is not entitled to receive the proha other property

, five hundred dollars. ble expenses of procuring his discharge.

The bankrupt was adjudged a bankrupt on his own petition, on June 10th BANKRUPTOY. LIMITATIONS. 1875; two days prior to this, and upon

U.S. CIRCUIT Court, LOUISIANA. the same day upon which his petition and schedule were drawn, he raised $1,000

Norton, assignee, v. De La Villebeauve,

13 X. B. R. 304. upon his real estate, out of which he paid his counsel $110 for drawing his petition, An action by an assignee is barred by &c. The balance he held. The assignee

the two years' limitation, although petitioned for an order that he account

the assignee may not have discovered

the right of action until after its exand pay over. The bankrupt claimed the

piration. payment to counsel ; that he should be The limitation applies as well to those allowed to retain suflicient to pay the ex causes of action which eristed prior penses of procuring his discharge, and to the adjudication in bankruptcy

as to those which arise subsequently. are within the equity of those expressed.

Action brought to establish title to and (Bank of Alabama v. Dalton, 9 llovard recover possession of land in possession of 522. McIver v. Ragan, 2 Wheaton 25, and claimed by defendant. The defend- Bucklin v. Ford, 5 Barb. 393; Hudson ant among other defenses pleads the v. Carey, 11 Sergt. & Rawle, 10.) The statute of limitations of two years, found plaintiff has been under no disability to in section 2 of the Bankrupt Act.

sue; the courts have been open to him, Plaintiff and defendant both claim title

and the defendant at all times liable to from the same source, from Person the

be sued by him. The limitation provided bankrupt; the plaintiff by virtue of his office as assignee, and the transfer to him had rnn ugainst him before this action of all the property of the bankrupt, and was brought. He falls within the Act the defendant by virtue of a sale, before and the law makes no exceptions. the bankruptcy of Person, under a mort 2. The theory urged that the limitation gage foreclosure.

applies only to new causes of action arisPerson was adjudged a bankrupt on ing in favor of the assignee after the the 9th of March, 1868; plaintiff was bankruptcy, and not to those which appointed his assignee on the 22nd of existed before the bankruptcy, and had April, 1868, and this action was brought on come to the assignee by the assignment, the 21st of August, 1871, over three years

could not be maintained. The provisions after the appointment of plaintiff as as- of the 14th and 10th sections of the Banksignee. The plaintiff did not discover rupt Act are not susceptible of any such

The the property and his right thereto until construction ; it is too narrow. about the 1st of July, 1871, about seven provisions of the 2nd, 14th and 10th weeks before the commencement of this sections must be construed together. So action.

considering them their meaning appears Held, That the question presented is, is this: the assignee may sue for and

plain, and the effect of the three sections does the fact that the plaintiff was ignorant of his rights relieve him from the the bankrupt in his own name, and have

recover the estate, debts and effects of bar of the statute; that no case could be the like remedy to recover thesame us found sustaining plaintiff's views; that if the bankrupt might have if the decree in it had been the intention of the law. bankruptcy (had not been rendered and making powers that the limitation should

no assignment had been made, provided begin to run from the time the plaintiff his suit for that purpose is brought within discovered his right of action, and not two years from the time the cause of from the time his right of action accrued, action accrued to him. On all matured it would have said so in unmistakable claims and demands the cause of action terms; that to introduce such an excep. accrues to the assignee at the date of the tion into the statute, would be an act of

assignment; all others from their ma: legislation on the part of the courts, and would be directly contrary to the policy and he must sue within two years from

turity or at the time an action will lie, of the Bankrupt Act, which looks to the

these dates respectively. speedy settlement of the bankrupt affairs. It might be equitable in some cases

Judgment for defendant. that this view of the plaintiff should pre

Opinion by Wood, J. vail, but it is not competent for the courts to engraft other exceptions on the statute, even on the ground that they

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