MORTGAGE. EVIDENCE. plaintiffs, by which the mortgagor de N. 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 prin et al, respts. Decided May 5, 1876. The finding of a justice at Special Term of a fact entirely outside of the issues raised by the pleadings is error sufficient to reverse the judgment, especially when such findings might have influenced such justice in his finding of a subsequent conclusien of law. A certificate signed by a mortgagor making certain declarations with reference to the validity of the mort gage is no estoppel as against the mortgagor, where it is not taken in good faith, and placing reliance on its statements, and evidence is always admissible to show whether it was so taken. cipal sum of $6,000, and the interest thereon from June 24, 1871, now remains unpaid on account thereof, and that the same is a good and valid lien upon said premises, for the whole of said principal and interest as aforesaid, and that there is no counter claim or offset against said bond and mortgage, or any defense thereto, in law or equity.' The broker employed by Windle to make the sale was called as a witness, and after stating his employment by him, he was asked the question: What did he state with reference to the mortgage as to its validity and character?" This question was objected to and Appeal from judgment at special excluded, and plaintiffs excepted. The term in equity. Action of foreclosure. usury. plaintiff's were themselves called, and Defense, were asked respectively whether at the time of the purchase they believed the cluded, and plaintiffs excepted. The execution of the bond and mort-mortgage to be good. This was exgage by the respondent, was admitted by the answer, in the allegation which precedes each defence set up in answer. namely, that the bond and mortage set forth in the complaintwere made by the defendant, and were by her delivered to James B. Windle, without any consideration whatever, and for the purpose of enabling him to borrow thereon for the defendant. money The justice who tried the cause, found as a fact that the bond and mortgage were obtained by the mortgagee fraudulently, and that the same were for that reason invalid. They were severally asked whether they relied upon that statement in making the purchase. This was excluded. They were then asked whether they would have taken the bond and mortgage and would have paid therefor unless the certificate had been furnished, which was excluded. To these several exclusions excep- M. L. Townsend for applt. 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 judgment ought to be reversed and a new trial granted. Because it is impossible to say that the justice was not influenced by his We think that the fudgment cannot be sustained upon any principle of law or equity. Judgment reversed. Opinion by Davis, P. J.; Brady findings upon that question in reaching and Daniels J. J. concurring. 66 that the his second legal conclusion, Held further, That the exclusion of the evidence sought to be adduced by the various witnesses above mentioned, was error. FORWARDER'S LIABILITY. N. Y. COURT OF APPEALS. Stannard et al., respt. v. Prince, applt. Decided February 25, 1876. A forwarder who does an act in good faith, which results in a loss of the goods forwarded, is not liable to the consignee by whom he was employed. This action was brought to recover freight advanced upon a cargo of mar It was quite competent to show what statement Windle made to the broker whom he employed to raise money upon the mortgage, with reference to its validity and character, because these statements, if repeated to the purchas- ble belonging to defendants. It apers as part of the negotiations, may be properly regarded as the declarations of the respondent's agent, made in the course of a negotiation, as part of the res gesta. It is also very clear that the plaintiffs were at liberty to show that they acted in good faith in making the purchase of the mortgage, and believed the certificate to have been given in good faith and to be true. Such a certificate is no estoppel where it is not taken in good faith and placing reliance upon the correctness of its statements, and the party who receives it upon such a purchase as this cannot use it as an estoppel if he himself did not in good faith believe its contents and rely upon its assertions. Of course a certificate fraudulently obtained from the mortgagor could not act as an estoppel against her, but this court does not find any such fraud nor peared that in 1865 plaintiffs were do- the railroad charges on it, load it on the * * * and Plaintiffs employed the captain of a canal boat to take the marble to Philadelphia, and shipped it at Troy, December 14. On the 16th plaintiffs learned that the boat was detained at Albany, and on going to ascertain the cause, there found that the proprietors of the only towing boat company it JURISDICTION. BANKRUPTCY. was then practicable to employ, deU. S. SUPREME COURT. clined to take the boat unless the capS. 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 the money. Bigelow, respt. Plaintiff's advanced the $175, and the boat was put into the tow by the em Decided April, 1876. ployees of the company in the plain-U.S. Circuit Courts may exercise the tiff's presence, and in turning around, in consequence of the improper manner in which the boat was attached, it was injured and sunk. jurisdiction conferred upon them by the bankrupt act whenever it obtains jurisdiction of the parties irrespective of the district in which the decree in bankruptcy was made. Appeal from the circuit court of the United States for the District of Louisiana. Defendant claimed that the transacat Albany changed the liability of plaintiffs, and that they there assumed the carriage of the goods and the responsibility of carriers. Smith, Furman & Cowen for respts. late of New Orleans, and tutrix of his Irving Browne for applt. The appellant is the widow and executrix of Thomas S. Burbank, deceased, minor children. She was complainant Held, That plaintiff's acted as for- below, and filed her bill on the 8th of warders simply. Story on Bail, § 444; 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 alstructions 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 The complainin any legal sense caused by it, and that the said circuit court. while 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, to a large amount. are pressing against her husband's estate. Judgment of general term affirming judgment for plaintiff on report of referee, affirmed. Opinion by Church, Ch. J. The court below did not pass upon the merits of the case, but dismissed the bill for want of jurisdiction; upon answer adopting the defense set up by him. Subsequently he filed another answer in which he claimed that the district court of Wisconsin alone had jurisdiction of the case. 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 one Hancock (a former partner of his), shortly before the filing of the bill in this case, filed their joint petition in the district court of the United States for the district of Wisconsin, to be declared bankrupts, and a decree of bankruptcy was rendered against them on the 23d day of January, 1869; but no assignment was made by the bankrupts until the 11th of February, 1869, (three days after filing the bill), when an assignment was made to George W. McDougall, of Wisconsin. In his schedHeld, This is a controversy, the deule 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 may be exercised by any circuit court itors. During the progress of the cause, on application of the complainant, a receiver was appointed by the court, who collected the amount due on the judg ment referred to in the pleadings. The court, therefore, had possession of the subject-matter in controversy, as well as jurisdiction of the parties. is not confined to the court of the district in which the decree of bankruptcy was made. Therefore, the time when the bankruptcy, or when the assignment. was made is totally immaterial. The court, under the bankrupt act, las jurisdiction of the cause as between the assignee in bankruptcy and the complainant, without reference to the citizenship of the parties. The court below is supposed to have having jurisdiction of the parties, and dismissed the bill for want of jurisdiction, on the ground that the controver sy belonged exclusively to the bankrupt court in Wisconsin, as an incident to the proceeds in the bankruptcy of Burbank. It is not pretended that the court had not jurisdiction of the person of the defendants. Edmond B. Bigelow, the original defendant, was duly served with process in New Orleans, and put 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 juassignee 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. As no other ground was assigned affecting the jurisdiction, we are of opinion that the court had jurisdiction of the case, and ought to have decided it upon its merits. The decree is reversed, and the cause remanded, with directions to proceed with the case in conformity with law. Opinion by Bradley, J. CORPORATION. DISSOLUTION. that day, and that its franchise be sur- G. W. Kennedy for applt. Held, The proceedings under section 36 of article 2d, chap. 8, part 3d of the revised statutes 2d vol., p. 462 entitled "Of proceedings against corporations in equity," &c., doubtless assumed the actual and continued existence of the corporation; such proceedings could not be instituted and sustained against Lake Ontario Nat. Bank, respt. v. a dissolved or extinct corporation. Onondaga County Bank, applt. Decided April, 1876. Proceedings under section 36 of art. 2d chap. 8, part 3d revised statutes, cannot be instituted against a dissolved or extinct corporation. A corporation can only be dissolved voluntarily as provided by statute, and proceedings of the directors not in conformity, are a nullity. Nothing but an act of the Legislature or the decree of a competent court can dissolve a corporation so as to affect suits, actions, &c. This was an application at special term for the appointment of a receiver. A receiver was appointed, and from such order defendant appeals. It is claimed on the part of the ap pellants that the proceedings of the directors and officers of the Onondaga County Bank above stated, operated to dissolve said corporation, and that thereafter no valid judgment could be recovered against said bank, and that it had no officers who could be served with or receive process for that purpose. This, we think, a mistake. A corporation can only effect its voluntary dissolution in the manner prescribed in article 3d of the title chapter and part of the revised statutes aforesaid. The proceedings of the directors of the defendants' bank were clearly not taken under said article, and are not in conOn and prior to the 21st day of Feb-formity therewith and were, the refore, 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. Plaintiff was a judgment creditor. 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 corpor lution that said bank go into liquida- ation so as to preclude suits and ac |