« ForrigeFortsett »
have certain remedies still subsisting, English High COURT OF JUSTICE. which are pointed out by the Act and CHANCFRY DIVISION.
Rules, but the right to take the debIn re Pettit's Estate.
tor's property acquired since the close Decided January 22, 1876.
of the bankruptcy is not one of those After the close of a bankruptcy, proper- remedies.
ty falling in to the bankrupt belongs After the close of a bankruptcy, the to him, and not to the trustee in bank- bankruptcy exists for certain purposes ruptcy, although the bankrupt has not only. Amongst those purposes is not obtained an order of discharge.
that of vesting the debtor's after acAdjourned summons.
On the 6th of December, 1872, Rich- quired property in the trustee. and Pettit was adjudicated a bankrupt,
Opinion by Bacon, V. C. and on the 14th of January, 1873, a APPEARANCE. JURISDICTION trustee was appointed.
On the 18th of June, 1873, the bank. N. Y. SUPREME Court, GEN. TERM. rupt passed his last examination; and
SECOND DEPARTMENT. by an order made before four o'clock Ferg'ison, applt., v. Crawford and in the afternoon of the 14th of April, others, respts. 1874, and filed on the 16th of April Decided February Term, 1876. following, the bankruptcy was declared An unauthorized appearance by an to be closed.
attorney gives jurisdiction, and the On the same 14th of April, but after
subsequent proceedings in the action five o'clock in the afternoon, R. Pet cannot be attacked in a collateral tit's father, Walter Pettit, died, having proceeding, on the ground that such by will bequeathed to him one fifth of appearance was unauthorized or his (the testator's) residuary estate.
forged. On t.e 23rd of April, 1874, the trus
Appeal from a judgment in favor of tee in the bankruptcy applied for his the defendants, in an action brought release, which, by an order of the 16th for the foreclosure of a mortgage on of June, 1874, was granted to him. premises on which a first mortgage had
R. Pettit had not obtained, nor had been foreclosed, in an action in which he applied for, a'i order of discharge. the present plaintiff appeared by at
The executor having paid the fund torney. Plaintiff offered to show that representing R. Pettit's share into Court, the notice of appearance was a forgery; the Registrar of the Court of Bankrupt. the evidence was excluded. cy having jurisdiction in the bankrupt
William F. Purdy, for the applt. cy during its continuance, claiming to J. 0. Dykman, for the respts. be the present trustee of the estate and Tield, An appearance, without aueffects of R. Pettit (see sect. 83, sub. thority, has been held, in this State, to sect. 3, of the Act, and Rule 124 of the give jurisdiction, and could not be atBankruptcy Rules, 1870), on the 23rd tacked collaterally. of November took out the present sum The rule rests upon grounds of public mons, which was in effect an applica- policy, and not wholly upon the law tion that the fund might be paid to him. of agency.
Held, Where a bankruptcy has been Judgment affirmed, with costs. closed, and the debtor has not obtained Opinion by Barnard, P.J.; Talcott, an order of discharge, the creditors' J., concurring.
NEW YORK WEEKLY DIGEST. chief commercial centers of the world;
that this Exchange is the business mart Vol. 2.) MONDAY MAY 22, 1876.
of St. Louis, and owns valuable person.
al POWER OF A COMMERCIAL
property in which all the members EXCIIANGE TO COMPEL MEM- have a vested interest ; that relator bePERS TO SUBMIT TO ARBI. came a member of said exchange on the TRATION. BY-LAWS.
18th day of July, 1871, and has, up to
the time of the alleged wrong comSt. Louis COURT OF APPEALS.
plained of by him, remained 80; State ex rel. Kennedy v. Union Mer- and that on 17th July, 1874, he was chant's Exchange, et al.
suspended from membership by the di. Decided April, 1876.
rectors, and has since that date been A by-law of a corporation which com- denied access to the floor of the expels members to submit all their busi- change, and deprived of all the beneness controversies to arbitration, and fits of membership. requires them to comply with the awards of the arbitrators, on pain of
These facts are set up in the petition, suspension or expulsion, is unreason
and are not denied in the return to the able, and hence roid.
writ. An alternative writ was issued ; A by-lawo will not be set aside as un- and, in their second amended return to
reasonable, if there is any equipoise this writ, the appellants set up that, of opinion in the matter; its unreasonableness must be demonstrably prior to their incorporation, the Union shown.
Merchants’ Exchange had long existed A by-law made in pursuance of an ex- as an association of merchants of St.
press power in the charter to make Louis, with rules, regulations, and bysuch laws, is void, if contrary to the laws to which members were required common law, or to a legal enactment.
to assent; that by its charter it has Appeal from circuit court of St.
power to make such rules and regulaLouis county.
tions as may be proper and needful, This is a proceeding by mandamus and possesses all other g neral powers to compel the appellants to reinstate incident to corporations and not inconthe relatır as a member of the Union sistent with the laws of Missouri and Merchants' Exchange of St. Louis.
of the United States; that, by said It appears that relator is a general charter, the then existing rules, regulaprovision and commission merchant of tions and by-laws are declared the rules St Louis ; that defendant, the Union of the corporation until regularly reMerchants’ Exchange, is an incorporat. pealed or changed; that the by-laws ed institution, of which the other de. and regulations now in existence were fendants are directors; that the Ex- legally enacted in accordance with the change numbers among its members charter, and were in force when plaintover one thousand merchants and busi. iftos relator was admitted as a member; ness men of St. Louis, and occupies and that he applied to be admitted subcommodious rooms in which these mer-ject to the existing rules and by-laws, of chants daily meet to trade, and where, which he had full knowledge, and was at the common cost of the members, admitted subject to these rules; and and for their exclusive benefit, they that he has knowingly a:d deliberately daily receive trade reports from the violated these rules, and been lawfully
suspended in accordance with the by To set aside a by-law, there must be laws for this violation of the laws of no equipoise of opinion in the matter; the association. That he has, by the its unreasonableness should be demonby-laws, a legal right to apply to be re- strably shown. instated in his rights as a member, and A by-law made in pursuance of an has neglected to do so. This is a mere express power to make such laws, if outline of the substantial features of contrary to the common law or to a return to the writ. It is not necessary legal enactinent, is void. Every by-law to set it out in detail nor to refer to any must be reasonable and lawful. (8 Pick, techrical objections made to it in the 96; Dunham v. Rochester, 5 Cowen, demurrer filed by the relator of plaintiff. 462; Com. Dig., By-law B.) The demurrer was sustained, and a per In view of the character and objects emptory writ ordered; and a motion of this corporation, and the manifest for a new trial and a rehearing having inconvenience to which every trader been overruled, the cause is brought up must necessarily be subject who is not by appeal.
permitted to join, or is expelled from The by-laws of the Union Merchants' the chief mart of commerce in the place Exchange are set out in full in the re- of which he is a citizen and a trader, turn; and the offense committed by re- we think a by-law compelling the memlator, for which he was suspended, was bers of the Union Merchant's Exa refusal to comply with an award of change to submit their controversies to arbitrators, to which he had, in accord- arbitration on pain of suspension or exance with the by-laws, agreed in wri- pulsion is unreasonable in the legal and ting to submit.
technical sense of that term, asd that Held, The law is not opposed to arb- it cannot be sustained. itration. On the contrary it is said to We are, therefore, of opinion that be the policy of the law to encourage the circuit court committed no error in these domestic tribunals, although they sustaining the demurrer to the return in may, if they choose, disregard the rules this case. of law in their decisions.
The judgment of the circuit court is But though the law encourages this
affirmed. reference to a tribunal of the choice of
Opinion by Bakewell J.; Gantt and the parties, which relieves the courts of a burden and the public of a heavy ex
Lewis, J. J., concurring. pense, and which sometimes can do and does a right that the courts cannot, it
TAXING COSTS. will not have persons coerced into waiv. N. Y. SUPREME Court. GENERAL Ters, ing their strict rights if they choose to
FIRST DEPT. insist upon them. Every citizen has a
Charles Goodman, et al., v. F. Guthright to the protection of the equal man, Jno. H. V. Arnold, respt., Henry laws, and to all the security against ir- Tetlow, applt. remediable injustice which the wisdom
Decided March 31, 1876. of centuries has provided in those tra
Order affecting a substantial right, ditional rules or legislative enactments
though discretionary, is appealable. that govern proceedings in courts of Where plaintiff's attorney taxed unluwjustice.
ful items in his bill of costs, a subse.
quent judgment creditor of the same lield, That the application by petidehtor may apply by petition to have tion was in proper form, and sought the the costs reudjusted, and the excess applied to his judgment.
proper remedy, a readjustment of the The motion papers are properly served costs, and payment of the excess to peupon the first plaintiff's attorney.
titioner. On the Sth of April, 1873, the plain
The court has full power to dispose tiff, Goodman, brought suit against of conflicting interests and claims, arisGuthman, and attached certain money ing out of the use made of its produe the latter from the Imperial Ins. cees and judgment, when application is Co.
made upon motion by way of petition On the 24th of April, Tetlow bronght and notice, and to adjust and determine suit against the same defendant, and al- a proper mode for distributing the protached the same money.
ceeds of the debtor's property equitably Judgment was entered in both ac- among the creditors. tions by default.
In this case the attorney is the subThe amount received ($579.30) being stantial party proceeded against, and insufficient to satisfy both claims, Good- should not be permitted to defeat the man's judgment, $529.70, was first application, by settling with his clients, paid. Of this but $368.70 was paid to for they have received none of the propGoodman, and $190.60 was taxed as erty required to be refunded. Nor costs, which were taxed the same
was it essential that the motion
papers as if au issue had been joined and a should have been served upon them. trial had. The disposition made of the The attorney in the first action, through balance does not appear.
an improper adjustment of the costs The plaintiff in the second action received a considerable amount which claiming that the costs taxed in the first otherwise would liave been applied upwere excessive and illegal, made appli- on the second judgment. cation by a petition, setting forth the He had no right to the items unlawfacts in proper form, to have the costs fully charged, and should not be allowreadjusted, and to have all the excessed to retain then because of a successover the legal costs applied on his judg ful expedient, which he ought not to ment.
have adopted. This was opposed, mainly, on the
Order reversed, and an order entered ground that the attorney, on whom the directing a readjustinent of the costs moving papers had been served, had in the controversy. settled with his clients, paying them Opinion by Daniels, J.; Brady, J., the amonnt they were entitled to re-concurring. ceive, and that he had no further connection with the matter.
TRUSTEE The court below denied the motion.
N. Y. COURT OF APPEALS. The order affecting a substantial
Hull, applt. v. Mitchison, respt. right, even though it may involve the
Decided February 22, 1876. exercise of discretion, is appealable. A trustee who has faithfully perJ. II. V. Arnold, for respt.
formed his duty as such cannot be A. II. Hitchcock, for applt.
removed on the application of the On appeal
cestui que trust.
Application by a trustee for relief re- affirmative judgment in accordance fused in a peculiar case of a foreign with the prayer of her complaint. trust.
That before defendant could have This action was brought to remove the relief given by the judgment it was defendant from the position of trustee necessary for him to show that the proand for the appointment of a new trus- vision in the past nuptial contract given tee resident in this State. The referee plaintiff (cestui que trust) the control of found that plaintiff, under the will of the trust estate, made a legal active trust her father was entitled to a certain in in the grantee under the laws of Pennterett in real estate in Pennsylvania ; sylvania, and that this must be found that plaintiff by a post nuptial contract by the referee as a ground for his legal executed by her and her husband, which conclusion and judgment, and there bewas lawtul and valid under the laws of ing no such evidence or finding, the Pennsylvania, conveyed her interest in judgment giving defendant the affirmathe real estate to one K. as trustee, ard tive relief songht could not be sustained. provided that K. should, at her option,
Per curiain opinion for reversal and permit and suffer her, she being a mar. new trial. ried woman, to let and demise, use and occupy and e: joy the premises thereby
AMENDING PLEADINGS. granted, and receive and take the rents and income during her natural life for N. Y. SUPREME Court, GENERAL TERM.
FIRST DEPARTMENT. her separate use and support. K. having died, defendant was appointed trus
Wm. A. Seaver, collector, &c., respt., tee. Prior to defendant's appointment v. The Mayor, &c., applt. the real estate had been converted Decided May 5, 1876. into money which was paid over to de- Where defendant believes in good faith fendant as trustee, and by him invested that he is concluded from pleading a in the purchase of a house and lot in certain defence, and therefore omits it New York city.
in his answer, but afterwards and
before trial, learns that the disability The referee also found that defend.
as to the purticular defence is re. ant had in all things performed his duty moved, he should be allowed to amend as trustee, and found as a conclusion of
his answer, and to set up this delaw, the answer asking affirmative relief fence. to that effect, that defendant was en- In such a case defendant shoulil pay titled to have the trust estate converted
all costs incurred from the serving
of his original answer. into money hat it might be reinvested in a lawful and proper manner, and Appeal from order denying motion that he was entitled to retain the amount for leave to serve an amended answer. due to him for commissions and dis This action was brought in February, bursements and the expenses of rein- 1873, to recover a balance of $90,337.50, vesting the trust fund.
claimed to be due plaintiff's decedent, Geo. F. Comstock for applt. for labor and money expended in regu. II. W. MacFarland for respt. lating, grading and curbing 10th
held. That the referee having found Avenue from Manhattan to 155th St. that defendant had performed his duty The complaint set out the nature and as trustee, plaintiff could not have in terms of the contract, and also the