the court will order its discontinu ance upon the payment of the judgment under which the receiver was

But the action being an equitable one, his fees and expenses as receiver, and sufficient to pay off and discharge the Searles judgment, and enable him to fully complete and discharge the duties of his trust, could direct that the action. could be discontinued, and if so paid in ten days, motion granted, if not, then motion denied, with costs, and the action to partition to proceed. Opinion by Barnard, P. J.

appointed, together with his costs, fees and expenses as receiver.

In November, 1875, John Searles recovered judgment against Charles D. Reeve, for $1,000, besides costs. Chas. D. Reeve, at this time, was the owner, as a tenant in common with others, of an interest in real estate, subject to the courtesy of his father. Execution hav



ing been duly issued and returned un- N. Y. SUPREME COURT. GENERAL TERM. satisfied, proceedings supplementary to execution were instituted against Reeve, and terminated in the appointment of plaintiff' as his receiver. Such appointment having been duly perfected, thereceiver obtained an order, ex part, from the supreme court special term, granting him leave, to commence an action against all proper parties for the partition of said real estate.

An action of partition was thereupon commenced by such receiver, against the other tenants in common, and all parties interested in. the real estate.

The matter then came up at special term, on a motion made by defendant D., to set aside the order granting leave to bring this action on the ground that a receiver cannot maintain an action of partition, and that the court should interfere and protect the rights of the other parties interested in the property.

Charles G. Dill, for receiver.
Sharp & Nanny, for defts.

Held, 1. That a receiver of a tenant in common, appointed in proceedings suplementary to execution, may maintain an action for partition of the real


2. That the action being in equity, the court in its exercise of equity, upon the receiver being paid his costs of suit,

People, ex rel. Andrew J. Thompson, applt., v. Mayor and Common Council of the city of Syracuse, respt.

Decided January, 1876.

Where a single improvement was properly ordered by the city authorities, and was let under separate contracts, and distinct assessments made to meet the expense under each contract, which assessments were afterwards annulled, and a single assessment made to meet he expense of the whole improvement, the latter assessment is valid; that the improvement was done under separate contracts affects no substantial right.

This was a writ of certiorari to re

view an assessment, &c. The writ was granted, and this appeal is from such


The object of the certiorari is to invalidate an assessment for the expense of paving East Genesee street, from the west side of Grape street to the east side of Almond street, in the city of Syracuse.

The return made to the writ shows that on the 23d of May, 1870, a petition for this improvement, signed by a majority of the owners of the property upon the line thereof, was presented to the common council; that on the 10th

of September, 1870, notices of such
proposed improvement were served up
on the parties to be assessed, conform-
ably to the requirement of section 1,
title 7 of the charter; that thereafter
the common council entered into a con-
tract for the making of a portion of
said improvement, namely: that be-
tween the west side of Grape street
and the east side of Orange street; and
that subsequently they entered into a
like contract for the making of the resi-
due of said improvement, and finally
caused separate assessments to be made.
in the manner provided in the charter
to defray the expenses of the respective
parts of the work. The only irregular
ity complained of in the proceedings of
the common council arose from their
acts in dividing the improvement into
two sections. But the separate assess-Her
ments were subsequently cancelled, and
the one under review was made, which
embraces the expenses of the entire im-
provement from Grape to Almond


Burdick & Love, for relator. Ruger, Wallace & Jenny, for respt. Held, The return is conclusive as to the facts stated in it, and must be taken as true. If it is false, the rela. tors must seek their remedy by action. (Haines v. Judges of Westchester, 20 Wend., 625; People v. Morgan, 65 Barb., 473.) The return shows the requisite petition for, and notices of, the proposed improvement, that the work was done under contract, and has been completed. The fact that it was done under two contracts, instead of one, affects no substantial right. No legal error in the assessment has been pointed out, nor is it alleged that it was not prepared and authenticated conformably to the charter. The fact that it was preceded by assessments for the

expense of separate parts of the work, which were set aside and annulled, does. not, in our opinion, affect its validity.

The objections of the relators seem to us to be unfounded in fact. The proceedings must, therefore, be affirmed with costs.

Opinion by Gilbert, J.; Mullin, P. J., and Smith, J., concurring.


Eustapere, respt., v. Ketchem, et al. applts.

Decided January, 1876.

A married woman who signs a lease not for the benefit of her separate estate or business, and not containing a clause expressly charging her sepacontracts not for the benefit of her rate estate, incurs no liability. separate estate are void.

This action was brought to recover rent for a dwelling house rented to defendants, husband and wife. The lease for the premises contained certain covenants, and was signed by both the husband and wife. The house was occupied by defendants and their family. Defendants answer separately, and Mrs. Ketchem sets up that she was, at the time the lease was executed, and still is, a married woman, and that the same was not for the benefit of her separate estate, &c., &c.

The judge, at the circuit, ordered a judgment for plaintiff.

J. M. Humphrey, for applt.
J. P. Parker, for respt.

Held, That the common law disability of a married woman to make a personal contract remains, except as taken away by recent statutes.

That the disability to make contracts. 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 dis-
nants 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
the defendant filed his schedule of as-

It was

benefit of her separate estate.
taken by her husband to provide a home sets, he omitted from said schedule
for his family, and Mrs. K. not having the following property, to-wit: 3 soli-
in 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-but-
payment 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
bankrupt. Suit was brought the 10th
of June, 1874.

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Pickett v. McGarick.

Decided April, 1876.

Although under the ordinary stat- fendant as a bankrupt be held void,
utes of limitations, the rule is that and that the defendant be still respon-
where 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

fraud, 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 de-
and the plea of the statute of limita
tion is a good plea, in an action to set fendant in this behalf.
aside a discharge as fraudulently ob-


Held, Section 34 of the bankrupt 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

Plaintiff alleges that he did not discover the fraud until July, 1872.

The plaintiff, among other things,

prays that the discharge of the de

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That such a construction is not deducible from the language of the law upon, or from its intent or spirit.

With my view of the law, the plea of the statute of limitations will be held good. Judgment for defendant.

Opinion by Parker, District Judge. RAISED CHECK. LIABILITY OF PURCHASER AND DRAWEE. SUPREME COURT OF TEXAS. City Bank of Houston National Bank.

Decided January Term, 1876. A check for twenty dollars, drawn on the First National Bank of Houston. was fraudulently altered and raised by the payee to two thousand dollars. It was purchased of him by J. & Co., who endorsed it to their agents, the City Bank of Ilouston, who presented it to the First National Bank, and it was by said bank pronounced good. In the usual course of business it was taken up by the First National Bank in the exchange of checks after bank hours. The City Bank thereupon gave J. & Co. credit for the amount. The forgery was not discovered until the next month, on the balancing of the accounts between the two banks. Held, That the National Bank was entitled to recover the amount from the City Bank as money paid under a mistake of fact.




This suit was brought by the First National Bank of Houston, to recover of the City Bank of Houston the sum | of $1,980.00 alleged to have been paid by mistake. A brief history of the transaction will be necessary. February 19, 1872, the Texas Banking and Insurance Company of Galveston issued to a stranger, claiming the name of D. J. Wallace, the following check;


THE TEXAS BANKING AND INS. Co. GALVESTON, February 19, 1872. Pay to the order of D. J. Wallace,

in current funds, twenty dollars. 364.

No. much cash. When the check was pronounced good, the City Bank gave Johns & Co. credit for the amount and notified them of the fact.

ALPHONSE LAUVE, Cashier. To First National Bank, Houston. After its issuance this check was fraudulently altered, so as to read as


It was the custom of the Texas

Banking and Insurance Company, and the First National Bank of Houston to transmit to each other, between the 1st and 3d of each month, an account current, showing the transactions between them for the preceding month. This account for February had been transmitted and received by the First National Bank, and entered up by its book-keeper, before the presentation of the check on March 6th, and showed

ALPHONSE LAUVE, Cashier. To First National Bank, Houston. In this altered condition the check was, on February the 25th or 26th presented 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. 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 susman 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 evidence of its been altered.

The facts seem only to have been fully ascertained some days afterward, after a trip by the president of the National Bank to Galveston, made tor the purpose, and personal demand for the return of the money was not made

On or about March 4th, the altered check was purchased by C R. Johns & Co., a banking firm at Austin, Texas, of a party who was introduced to them by a person known to them, as D. J. Wallace, and who in that name en dorsed to them the check. They endorsed 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



GALVESTON, February 17, 1872. Pay to the order of D. J. Wallace, in current funds, two thousand dollars. No. 364.

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