« ForrigeFortsett »
But the action being an equitable one, his fees and expenses as receiver, and
the court will order its discontinu- sufficient to pay off and discharge the
In November, 1875, John Searles re. could be discontinued, and if so paid in
Opinion by Barnard, P. J. an interest in real estate, subject to the courtesy of his father. Execution hav.
LOCAL ASSESSMENTS. ing been duly issued and returned un
N. Y. SUPREME COURT. GENERAL TERM. satisfied, proceedings supplementary to
FOURTH DEPARTMENT. execution were instituted against Reeve, and terminated in the appointment of
People, ex rel. Andrew J. Thompson, plaintiff as his receiver. Such appoint- applt., v. Mayor and Common Council ment having been duly perfe. ted, there of the city of Syracuse, respt. ceiver obtained an order, ex part, from
Decided January, 1876. the supreme court special term, grant- Where a single improvement was proping him leave, to commence an action erly ordered by the city authorities, against all proper parties for the parti
anil was let under separate contracts, tion of said real estate.
and distinct assessments made to An action of partition was thereup
meet the expense under each contract,
which assessments were afterwards on commenced by such receiver, against annulled, and a single assessment the other tenants in common, and all made to meet he expense of the whole parties interested in the real estate. improvement, the latter assessment is The matter then came up at special
valill ; that the improvement was
done under separate contracts affects term, on a motion made by defendant
no substantial right. D., to set aside the order granting leave
This was a writ of certiorari to reto bring this action on the ground that
view an assessment, &c. The writ was a receiver cannot maintain an action of
granted, and this appeal is from such partition, and that the court should in
order. terfere and protect the rights of the other parties interested in the property. validate an assessment for the expense
The object of the certiorari is to inCharles G. Dill, for receiver.
of paving East Genesee street, from the Sharp & Nanny, for defts.
west side of Grape street to the east Held, 1. That a receiver of a tenant side of Almond street, in ihe city of in common, appointed in proceedings Syracuse. suplementary to execution, may main The return made to the writ shows tain an action for partition of the real that on the 23d of May, 1870,
tion for this improvement, signed by a 2. That the action being in equity, majority of the owners of the property the court in its exercise of equity, upon upon the line thereof, was presented to the receiver being paid his costs of enit, the common council; that on the 10th
of September, 1870, notices of such expense of separate parts of the work, proposed improvement were served up. which were set aside and annulled, does on the parties to be assessed, conform- not, in our opinion, affect its validity. ably to the requirement of section 1, The objections of the relators seem to title 7 of the charter; that thereafter us to be unfounded in fact. The prothe common council entered into a con- ceedings must, therefore, be affirmed tract for the making of a portion of with costs. said improvement, namely: that be Opinion by Gilbert, J.; Mullin, P. tween the west side of Grape street J., and Smith, J., concurring. and the east side of Orange street; and that subsequently they entered into a MARRIED WOMAN. LEASE. like contract for the making of the resi- N. Y. SUPREME COURT. GEN. TERM. due of said improvemen“, and finally
FOURTH DEPARTMENT. caused separate assessments to be made
Eustapere, resps., v. Ketchum, et al. in the manner provided in the charter
applts. to defray the expenses of the respective
Decided January, 1876. parts of the work
The only irregular! A married woman who signs a lease ity complained of in the proceedings of not for the benefit of her separate es. the common council arose from their tate or business, and not containing acts in dividing the improvement into
a claus erpressly charging her sepatwo sections. But the separate assess- her contracts not for the benefit of her
rate estate, incurs no liability. ments were subsequently cancelled, and
separate estate are void. the one under review was made, which
This action was brought to recover embraces the expenses of the entire in
rent for a dwelling house rented to deprovement fron Grape to Almond street.
fendants, husband and wife. The lease Burdick & Love, for relator. for the premises contained certain cove. Ruger, Wallace & Jenny, for respt. nants, and was signed by both the hus
Ileld, The return is conclusive as band and wife. The house was occuto the facts stated in it, and must be pied by defendants and their family. taken as true. If it is false, the rela- Defendants answer separately, and Mrs. tors must seek their remedy by action. Ketchem sets up that she was, at the (Haines v. Judges of Westchester, 20 time the lease was executed, and still is, Wend., 625; People v. Morgan, 65 a married woman, and that the same Barb., 473.) The return shows the re- was not for the benefit of her separate quisite petition for, and notices of, the estate, &c., &c. proposed improvement, that the work The judge, at the circuit, ordered a was done under contract, and has been judgment for plaintiff, completed. The fact that it was done J. M. Ilumphrey, for applt. under two contracts, instead of one, af
J. P. Parker, for respt. fects no substantial right. No legal Hell, That the cominon law disabilerror in the assessment has been point- ity of a married woman to make a pered ont, nor is it alleged that it was sonal contract remains, except as taken not prepared and authenticated con- away by recent statutes. formably to the charter. The fact that That the disability to make contracts. it was preceded by assessments for the taken away by recent statutes only ap
plies to two classes, viz: Those which fendant, to recover from him a large relate to her separate estate or to her amount of diamonds, alleged by the separate business, and except as to such plaintiff to be of the value of $5,000 contracts made for herself, or for her
Plaintiff alleges, that on the 19th benefit, her naked personal contracts, day of December, 1868, defendant made for herself, or for or with her hus filed his petition in the bankrupt court band, are absolutely void, unless she ex
of the Eastern District of Arkansas, pressly charges her separate estate.
sitting at Little Rock, that he was duly That the husband was bound to sup
declared a bankrupt, and on the 14th port his wife and family, and the cove. day of June, 1871, received his disnants in the lease bound him only. The charge as such bankrupt. That the lease was not taken for Mrs. K., in her plaintiff was appointed assignee of separate business, or in any way for the said bankkrupt. That at the time benefit of her separate estate. It was the defendant filed his schedule of astaken by her husband to provide a hoine sets, he omitted from said schedule for his family, and Mrs. K. not having the following property, to-wit: 3 soliin such lease, or in any way expressly taire diamond studs, 1 cluster diamond charged her separate estate with the ring and 1 pair of diamond cuff-butpayment of the rent under said lease, tons, all set in gold, valued at $5,000, she is not liable.
That the defendant fraudently withheld Judgment reversed.
these from the assignee. This suit in Opinion by Smith J.; Mullin P. J. equity is to set aside the discharge and and Gilbert J., concurring.
recover the diamonds, or their value,
for the benefit of creditors of this SETTING ASIDE DISCHARGE IN bankrupt. Suit was brought the 10th
BANKRUPTCY-LIMITATION. of June, 1874.
cover the fraud until July, 1872. Pickett v. McGarick.
The plaintiff, among other things, Decided April, 1876.
prays that the discharge of the deAlthough under the ordinary stat- fendant as a bankrupt be held void,
utes of limitations, the rule is that and that the defendant be still responwhere the cause of action is based up-sible for his debts. To this bill in on fraud, the statute does not com- equity defendant sets up the plea of mence to run until it has become the statute of limitations, alleging in known to the party injured by the frau, still, as by section 34, of the said plea, that said supposed cause of bankrupt act, it is postively provided action in said complaint mentioned did that the discharge may be contested not accur ate any time within two years within two years after the date there next before the exhibiting of the bill of, this must be taken as the limit
, of said plaintiff against the said deand the plea of the statute of limitation is a good plea, in an action to set fendant in this behalf. aside a discharge as fraudulently ob
Hud, Section 34 of the bankrupt taimed.
act provides, that any creditor of the This was
a suit brought by the bankrupt may at any time, within two plaintiff as assignee in bankruptcy years after the date of the discharge, of the defendant, against the defen- apply to the court to set aside and
amend the same, on the ground, that That such a construction is not deit was fraudently obtained. When did ducible from the language of the law this cause of action first accrue iu a upon, or from its intent or spirit. case under this section; from the date With my view of the law, the plea of this discharge or the discovery of of the statute of liinitations will be held the fraud?
good. Judgment for defendant. Under the ordinary statutes of limi. Opinion by Parker, District Judge. tations, which provide that suits shall
RAISED CHECK. LIABILITY OF be brought at a specified time after
PURCHASER AND DRAWEE. the cause of action accrues, it has be
SUPREME COURT OF TEXAS. come a fixed rule, that where an action
City Bank of Houston
V. First is based upon a fraud, the statute does
National Bank. not commence to run until it has become known to the party injured by
Decided January Term, 1876. the fraud. Because it can well be said
A check for twenty dollars, drawn on
the First National Bank of Houston. that the cause of action did not accrue
was fraudulently altered and raised until the party could avail himself of
by the payee to tiro thousand dollars. a remedy to enforce that cause of action It was purchased of him by J. & and he could not do so until the cause
Co., who endorsed it to their agents, of action was discovered. But this sec
the City Bank of Ilouston, who pre
sented it to the First National Bank, tionis different from the ordinary stat and it was by said bank pronounced utts' t limitations. It postively pro
good. In the usual course of busivides that the discharge may be contest ness it was taken up by the First ed at any time within two years after
National Bank in the exchange of tie date therzof.
checks after bank hours. The City That time must then be taken as the
Bank thereupon gave J. & Co.
credit for the amount. The forgery time when the cause of action accrues.
was not discovered until the next From the language of the 34th section, month, on the balancing of the acand the general policy of the law, I am counts between the two banks. inclined to the opinion that Congress
Held, Thut the National Bank was intended to limit the creditors in any
entitled to recover the amount from
the City Bank us money paid under case representing them to two years a mistake of furt. from the date of the discharge, in
This suit was brought by the First which they may seek to set it aside. National Bank of Houston, to recover This is the interpretation placed upon of the City Bank of Ilouston the sum that section by all authorities.
of $1,950.00 alleged to have been paid I am aware that a different construc- by mistake. A brief history of the tion was placed upon this section by transaction will b: necessary.
On Judge Tatt, judge of the Superior February 19, 1872, the Texas Banking Court of Cincinnati, in Perkins v. (ray, and Insurance Company of Galveston 3 X. B. R. 772, when he held that the issued to a stranger, claiming the name discharge could be attacked at any of D. J. Wallace, the following check; time, and in any court for fraudulent $20. concealment.
THE TEXAS BANKING AND INs. Co. But with all due respect to the learn GALVESTON, February 19, 1872. ed judge, I think this is not good law. Pay to the order of D. J. Wallace,
in current funds, twenty dollars. No. much cash. When the check was pro364.
nounced good, the City Bank gave ALPHONSE LAUVE, Cashier,
Johns & Co. credit for the amount and To First National Bank, Houston.
notified them of the fact. After its issuance this check was
It was the custom of the Texas frandulently altered, so as to read as Banking and Insurance Company, and tollows: $2000.
the First National Bank of Houston to THE TEXAS BANKING AND INs. Co. transmit to each other, between the 1st Galveston, February 17, 1872.
and 3d of each month, an account cuirPay to the order of D. J. Wallace, rent, showing the transactions between in current funds, two thousand dollars. them for the preceding month. This No. 364.
account for February had been transALPHONSE LAUVE, Cashier. mitted and received by the First To First National Bank, Houston. National Bank, and entered up by its
In this altered condition the check book-keeper, before the presentation of was, on February the 25th or 26th pre- the check on March 6th, and showed sented to plaintiff, but the party pre-check No. 364 to be for $20, and of date senting failed to identify himself satis- February 19th, and of course did not factorily as the payee Wallace, and show any check corresponding to the payment was refused. At the time, one paid.
At the time, one paid. On the 3d day of April, on Wallace was accompanied by Mr. the interchange of accounts for the Gray, assistant teller of the City Bank, month of March, the alteration of the who said: “This is Mr. Wallace, or a check was discovered, or at least sus. man of that name, who keeps an ac- pected, and after enquiry of, and hearcount with us that is under that name." ing from the drawer, was made known This was deemed insufficient, and Gray at once to the defendant, and the check refusing to endorse for him, payment was examined at this time by the was refused.
officials of both banks, who detected no On or about March 4th, the altered evidence of its hav.ng been altered. check was purchased by C R. Johus & The facts seem only to have been tully Co., a banking firm at Austin, Texas, ascertained some days afterward, after of a party who was introduced to them la trip by the president of the National by a person known to them, as D. J. Bank to Galveston, made for the purWallace, and who in that name en pose, and personal demand for the dorsed to them the check. They en- return of the money was not made dorsed it to their correspondent and until April 9th.
The defences set up agent, the City Bank of Houston, for were, that the plaintiff had notice that the purpose of collection. On the no such check had been drawn on them morning of March 6th, the check thus at the time of the payment; that the endorsed was presented by the City check, prior to any endorsement by deBank to the National Bank, and was fendant, had been submitted to the by the latter pronounced good, and on plaintiff and pronounced by it to be the evening of that day, in accordance good, thereby virtually accepting the with the custom of these banks, the same, and that upon the faith of that City Bank endorsed the check and re- acceptation, defendant endorsed said ceived credit for the amount as so check, and credited their correspon