MORTGAGE. EVIDENCE. plaintiffs, by which the mortgagor deN. Y. SUPREME Court, GENERAL TERM. clared "that the said bond and mortgage FIRST DEPARTMENT.

were executed for a good and valuable Dinkelspiel, et al., applts. v. Franklin consideration, and that the entire prinet al, respts.

cipal sum of $6,000, and the interest

thereon from June 24, 1871, now reDecided May 5, 1876.

mains unpaid on account thereof, and The finding of a justice, at Special shat the same is a good and valid lien

Term of a fact entirely outside of the issues raised by the pleadings is upon said premises, for the whole of error sufficient to reverse the judg- said principal and interest as aforesaid, ment, especially when such findings and that there is no counter claim or might have influenceil such justice in offset against said bond and mortgage, his finding of a subsequent conclu- or any defense thereto, in law or equity.”

siin of law. A certificate signed by a mortgagor

The broker employed by Windle to making certain declarations with make the sale was called as a witness, reference to the validity of the mort and after stating his employment by gage is no estoppel as against the him, he was asked the question : mortgagor, where it is not taken in “ What did he state with reference to its statements

, and evidence is always the mortgage as to its validity and admissible to show whether it was 80

character ?" taken.

This question was objected to and Appeal from judgment at special excluded, and plaintiffs excepted. The term in equity.

plaintiff's were themselves called, and Action of foreclosure. Defense, were asked respectively whether at the usury.

time of the purchase they believed the The execution of the bond and mort- mortgage to be good. This was exgage by the respondent, was admitted cluded, and plaintiffs excepted. by the answer, in the allegation which They were severally asked whether precedes each defence set up in answer. they relied upon that statement in makpamely, that the bond and mortage set ing the purchase. This was excluded. forth in the complaintwere made by the They were then asked whether they defendant, and were by her delivered would have taken the bond and mortto James B. Windle, without any con- gage and would have paid therefor unsideration whatever, and for the pur- less the certificate had been furnished, pose of enabling him to borrow money

which was excluded. thereon for the defendant.

To these several exclusions excepThe justice who tried the cause,

tions were duiy taken. found as a fact that the bond and mort

On appeal. gage were obtained by the mortgagee

M. L. Townsend for applt. fraudulently, and that the same were Dudley Field for respt. for that reason invalid.

Held, That the finding of the learned On the trial, a certificate purporting justice to the effect that the bond and to have been executed by the respond- mortgage were fraudulently obtained ent during the negotiation for, and be- by the mortgagee, and were, for that fore the purchase was made by the reason, invalid, is in direct conflict with

the pleadings, and was not, we think, could the evidence have justified such a supported by the evidence. For this finding. reason alone we think that the judg We think that the fudgment cannot ment ouglit to be reversed and a new be sustained upon any principle of law trial granted.

or equity. Because it is impossible to say that

Judgment reversed. the justice was not influenced by his Opinion by Davis, P. J.; Brady findings upon that question in reaching 2017 Daniels J. J. concurring. his second legal conclusion, “that the bond and mortgage were void and FORWARDER'S LIABILITY. should be given up to be cancelled.”

N. Y. COURT OF APPEALS. Held further, That the exclusion Stannard et al., respt. v. Prince, of the evidence sought to be adduced

applt. by the various witnesses above mention

Decided February 25, 1876. ed, was error.

A forwarder who does an act in good It was qnite competent to show what faith, which results in a loss of the statement Windle made to the brolier goods forwarded, is not liable to the whom he employed to raise money up

consignee by whom he was employed. on the mortgage, with reference to its

This action was brought to recover validity and character, because these freight advanced upon a cargo of marstatements, if repeated to the purchas- ble belonging to defendants. It apers as part of the negotiations, may be peared that in 1865 plaintiffs were do. properly regarded as the declarations ing business as forwarders in the city of the respondent's agent, made in the of Troy, and that they received a car.. course of a negotiation, as part of the go of marble consigned to their care at res gestae.

Troy, and directed to defendant at It is also very clear that the plaintiff's Philadelphia. In November, 1865, de were at liberty to show that they acted fendant employed plaintiffs to secure in good faith in making the purchase vessels at Troy for the marble, to pay of the mortgage, and believed the cer

the railroad charges on it, load it on the tificate to have been given in good vessels, and generally superintend and faith and to be true.

facilitate its shipment. He wrote to Such a certificate is no estoppel where you in the freight so as to prevent ship

plaintiffs: “I do not mean to limit it is not taken in good faith and placing ping in good season

and reliance upon the correctness of its will expect you to do the very best you statements, and the party who receives can for me in the way of freight, disit upon such a purchase as this cannot patch,” &c. use it as an estoppel if he himself did

Plaintiffs employed the captain of a not in good faith believe its contents canal boat to take the marble to Philaand rely upon its assertions.

delphia, and shipped it at Troy, DeOf course a certificate fraudulently cember 14. On the 16th plaintiff's obtained from the mortgagor could not learned that the boat was detained at act as an estoppel against her, but this Albany, and on going to ascertain the court does not find any such fraud nor cause, there found that the proprietors

the money. Bigelow, respt.

of the only towing boat company it JURISDICTION. BANKRUPTCY. was then practicable to employ, de U. S. SUPREME COURT. clined to take the boat unless the cap

S. N. Burbank, tutrix of the heirs tain would pay an old bill for towing of Thomas S. Burbank, deceased, of $75, and $100 in advance for towing applt. v. Edmond B. Bigelow, W. W. the boat at that time, and that the cap: Bigelow, George W. McDaugall, astain had agreed to do this, and had

signee in bankruptcy of Edmond B. gone home to procure Plaintiff's advanced the $175, and the

Decided April, 1876. boat was put into the tow by the employees of the company in the plain-U. S. Circuit Courts may exercise the

jurisiliction conferred upon them by tiff's presence, and in turning around,

the bankrupt act whenever it obtains in consequence of the improper man jurisdiction of the parties irrespectner in which the boat was attached, it ive of the district in which the dewas injured and sunk.

cree in bankruptcy was made. Defendant claimed that the transac Appeal from the circuit court of the at Albany changed the liability of United States for the District of Louiplaintiffs, and that they there assumed siana. the carriage of the goods and the re

The appellant is the widow and exesponsibility of carriers.

cutrix of Thomas S. Burbank, deceased, Smith, Furman & Cowen for respts. late of New Orleans, and tutrix of his Irving Browne for applt.

minor children. She was complainant Held, That plaintiffs acted as for- below, and filed her bill on the 8th of warders simply. Story on Bail, s 144; February, 169, against Edmond B. 12 J. R., 232; that in what they did at Bigelow, of Wisconsin, for an account Albany they simply removed the ob- of a certain partnership which she al. structions to the passage of the boat leges existed between her husband and and enabled it to fulfil the contract al. said Bigelow; and, amongst other ready made. Their acts were all in the things, she specially prays that Bigecapacity of forwarders, and in volun- low may account for, as part of the teering to make extraordinary exertions partnership assets, the proceeds of a they acted at defendant's request, and certain judgment for $13,864.34 as it appears, in good faith, for their which he recovered in his individual interest; that the loss was not the con- name against one Edward W. Burbank, sequence of the plaintiff's act, and not on the 27th day of February, 1866, in in any legal sense caused by it, and that the said circuit court.

The complainwhile (defendant was not liable for the ant alleges that this judgment was for $75 advanced for the captain, it was a debt due the partnership, and ought clearly for his benefit and he had no to be applied to the payment of the reason to complain.

partnership debts, a portion of which, Judgment of general term affirming to a large amounts are pressing against judgment for plaintiff on report of ref- her husband's estate. eree, affirmed.

The court below did not pass upon Opinion by Church, Ch. J.

the merits of the case, but dismissed the bill for want of jurisdiction ; upon

what ground does not distinctly appear. ruptcy, and having by order of the The only ground alleged in support of court been subrogated to the rights of the decree is, that Edmond B. Burbank, Edmond B. Bigelow, filed a separate the original defendant, together with answer adopting the defense set up by one Hancock (a former partner of_his), him. Subsequently he filed another shortly before the filing of the bill in answer in which he claimed that the this case, filed their joint petition in the district court of Wisconsin alone had district court of the United States for jurisdiction of the case. the district of Wisconsin, to be declar During the progress of the cause, on ed bankrupts, and a decree of bank- application of the complainant, a reruptcy was rendered against them on ceiver was appointed by the court, who the 23d day of January, 1869; but no collected the amount due on the judg assignment was made by the bankrupts inent referred to in the pleadings. The until the 11th of February, 1869, (three court, therefore, had possession of the days after filing the bill), when an as- subject-matter in controversy, as well signment was made to George W. Mc- as jurisdiction of the parties. Dougall, of Wisconsin. In his sched

Held, This is a controversy, the de. ule of assets in bankruptcy, Bigelow termination of which is clearly embrarefers to the Judgment recovered by ced within the jurisdiction conferred him against Edward W. Burbank, but

upon the circuit courts by the second states that it had been assigned to W. clause of section 2 of the original bankW. Bigelow, and conditionally assign. rupt act, now section 4,979 of the reed to one Porter for the benefit of cred-vised statutes. That this jurisdiction itors.

may be exercised by any circuit court The court below is supposed to have having jurisdiction of the parties, and dismissed the bill for want of jurisdic. is not confined to the court of the distion, on the ground that the controver-trict in which the decree of bankruptcy sy belonged exclusively to the bank- was made. Therefore, the time when rupt court in Wisconsin, as an incident the bankruptcy, or when the assignment to the proceeds in the bankruptcy of was made is totally immaterial. The Burbank. It is not pretended that the court, under the bankrupt act, las jucourt had not jurisdiction of the person risdiction of the cause as between the of the defendants. Edinond B. Bigelow, assignee in bankruptcy and the comthe original defendant, was duly served plainant, without reference to the citiwith process in New Orleans, and put zenship of the parties. in an answer to the merits on the first But, inasmuch as the parties were of March, 1869. Thereupon an amend citizens of different states, she might ed and supplemental bill was filed, and have done this without the aid of the W. W. Bigelow, the alleged special as- section referred to. The bankrupt law signee, and George W. McDougall, the has not deprived the state court of juassignce in bankruptcy, were made de- risdiction over suits brought to decide fendants, and duly appeared. W. W. rights of property between the bankBigelow formally adopted the answer rupt (or his assignee) and third persons ; of Edmond B. Bigelow; and McDou- and whenever the state courts have jugall exhibited the proceedings in bank- risdiction, the circuit courts of the Uni

ted States have it, if the proper citizen- tion, be closed, and its business cease on ship of the parties exists.

that day, and that its franchise be surAs no other ground was assigned af- rendered, and thereupon the securities fecting the jurisdiction, we are of opin- deposited with said superintendent be ion that the court had jurisdiction of returned. the case, and ought to have decided it G. W. Kennedy for applt. upon its merits. .

N. W. Nutting for respt. The decree is reversed, and the cause remanded, with directions to proceed 36 of article 2d, chap. 8, part 31 of

Ileld, The proceedings under section with the case in conformity with law.

the revised statutes 2d vol., p. 462 enOpinion by Bradley, J.

titled ** Of proceedings against corporaCORPORATION. DISSOLUTION. the actual and continued existence of

tions in equity,” &c., doubtless assumed N. Y. SUPREME COURT, GENERAL TERM, the corporation ; such proceedings could FOURTH DEPARTMENT.

not be instituted and sustained against Lake Ontario Nat. Bank, respt. v. a dissolved or extinct corporation. Onondaga County Bank, applt.

It is claimed on the part of the apDecided April, 1876.

pellants that the proceedings of the diProceedings under section 36 of art. rectors and officers of the Onondaga

2d chap. 8, part 3d revised statutes, County Bank above stated, operated to cannot be instituted against a dis- dissolve said corporation, and that

solved or extinct corporation. thereafter no valid judgment could be A corporation can only be dissolved vol, recovered against said bank, and that

untarily as provided by statute, and proceedings of the directors not in it had no officers who could be served conformity, are a nullity.

with or receive process for that purNothing but an act of the Legislature pose.

or the decree of a competent court This, we think, a mistake. A corcan dissolve a corporation 80 as toporation can only effect its voluntary affect suits, actions, &c.

dissolution in the manner prescribed in This was an application at special article 3d of the title chapter and part term for the appointment of a receiver. of the revised statutes aforesaid. The

A receiver was appointed, and from proceedings of the directors of the desuch order defendant appeals.

fendants' bank were clearly not taken Plaintiff was a judgment creditor. under said article, and are not in con

On and prior to the 21st day of Feb- formity therewith and were, therefore, ruary, 1875, the appellant was a regu- entirely ineffectual to accomplish the larly organized bank under the statutes dissolution of said corporation and of this state providing for the organi- abortive. zation of state banks. On or about

The discontinuance of the business that day, the directors of said bank, as of the bank under said resolution could appears from the affidavit of its cashier work no dissolution of the corporation. and notice of that date by him served Nothing but an act of the legislature upon the superintendent of the bank repealing its charter or a decree of a department of said state, passed a reso competent court, can dissolve a corporlution that said bank go into liquida- ation so as to preclude suits and ac

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