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SET OFF OF JUDGMENTS, LEASE. FORFEITURE. RELIEF N. Y. COURT OF APPEALS.

IN EQUITY. Swift, respt., v. Prouty, applt. English High Court OF JUSTICE. Com

PLEAS DIVISION. Decided April 4, 1876. An assignee of a judgment takes it sub Hughes v. The Metropolitan Railject only to such equities as exist in

as exist in way Company. favor of the defendant at the time of the assignment.

Decided February 16, 1876. Judgments can only be set off on sum

Equity will relieve a lessee against formary application by motion. If the defendant has any equities feiture for breach of a covenant to against the assignee they can only be

repair when the landlord has by his

conduct misled the lessee into suppos. asserted by an action.

ing that the covenant would not be This was an appeal from an order of

insisted on. the General Term, reversing an order

A lease of certain premises contained of Special Term granting a motion by defendant to set off a judgment recov

a covenant to repair upon six months'

notice and a condition of re-entry for ered by him against plaintiff prior to

breach. The defendants became subthe recovery of judgment in this action

lessees of the premises under a lease against judgment recovered herein against defendant. It appeared that containing a similar covenant. The the claim upon which this action was

premises being out of repair, the plain

tiff, who was the reversioner, gave nobrought was assigned by plaintiff to one B. before judgment.

tice to the defendants on the 22d of Oc

tober, 1874, to repair within six J. E. Cary, for respt.

months. The defendants wrote to the Davis & Lyon, for applt.

plaintiff, suggesting that he should Held, That plaintiff's assignee took it purchase their interest, and stating that subject only to such equities in favor of they should postpone the repairs until defendant as existed at the time of the they heard from him on the subject. assignment; that the claim was not the Negotiation thereupon took place with subject of a set off until the judgment reference to a purchase of the defendwas perfected, and could then only be set ant's interest by the plaintiff, and finaloft upon summary application by mo- ly the plaintiff wrote on the 31st of Detion as the property of plaintiff, that if cemler to the defendants, stating that defendant had any equities as against the price they asked was out of all reathe assignee they could only be enforced son, having regard to the expenditure by action, and could not be asserted by which would be required to put the motion. 4 Hill 559; 5 id. 568; H. and premises into proper condition, and D. 112; 10 Paige 369.

which the defendants would have to Quere as to whether the order was bear under their covenant, and requestappealable, the application being ad- ing the defendants to reconsider the dressed to the discretion of the court. question of price, and to make some Order affirmed.

modified proposal. No further proposOpinion by Allen, J.

al was made by the defendants, and though some further correspondence

took place with regard to the premises, APPROPRIATION OF PAY. the plaintiff never intimated to the de

MENTS. fendants that he considered the negoti- English High Court OF JUSTICE, ations at an end. On the 13th of April,

QUEEN'S BENCH DIVISION. 1875, the plaintiff wrote to the defendants' lessor stating that the six months' Hooper and others v. Keay and notice would expire on the 21st. The Draper. defendants thereupon caused the prem

Decided December 17, 1875. ises to be repaired, and the repairs were completed in June, 1875. The plaintiff Where one of several partners dies, and brought an action of ejectment in re

the partnership is in debt, and the spect of the premises, and recovered

surviving partners continue their

dealings with a particular creditor, judgment therein, and the defendants

and the latter joins the transactions sought relief against the forfeiture by of the old and new firms in one enmotion under Order 53, why plaintiff tire account, payments made from should not be restrained from proceed

time to time by the surviving part ing to execution.

ners must be applied to the old debt The Common Pleas Division held The plaintiffs supplied goods to K. that the negotiations were finally bro- & D., who were in partnership, and they ken off on the 31st of December, no gave plaintiffs their acceptance for 1321., further proposal having been made by the amount. Before the bill was due the defendants; that the effect of the K. & D. dissolved partnership, and gave correspondence was only to give the de- notice to the plaintiffs with the intimafendants a reasonable time for repairing tion that K. would carry on the busiafter that period; and that, inasmuch ness, and would receive and pay the acas the interval between the 31st of Decounts due to and from the old firm. cember and the 21st of April was a The plaintiffs continued to supply K. reasonable time for that purpose, the with goods, and he gave them his acdefendants were not entitled to relief. ceptance for the amount, and also paid

Held, That the true construction of them several sums on account, but withwhat had taken place was that the no- out any specific appropriation. After tice to repair was suspended during the some months the plaintiffs sent in their negotiations; that the negotiations were account to K., beginning on the debit not finally broken off on the 31st of De- side with the acceptance for 1321., and cember, and that the plaintiff by his after giving him credit for the sums conduct had misled the defendants into paid, shewing a balance against K. of supposing that the notice to repair was 921. After this K. paid the plaintiff's still suspended, and that he was not in- two other sums, which, with the sums sisting on the breach of the covenant ; already paid, amounted to more than and, consequently that it would be in - 1321. Plaintiffs having sued K. & D. equitable to permit him to take advan. on their acceptance for 1321 , D. pleaded tage of the forfeiture.

payment. Judgment reversed.

Held, That the plaintiffs having sent Opinions by James, Mellish, Baggal- in the statement to K., treating the lay, Mellor, and Cleasby.

whole as one account, the subsequent

payments must be appropriated to the premiums and transmit them, having earlier items of the account; and con- no other authority. sequently that the plea was proved. The judge charged the jury that the

Opinion by Blackburn, Quain, and agent had authority to waive the conField. J.J.J.

dition in the policy requiring plaintiff

to furnish proof of loss. AGENCY. WAIVER.

TIeld, error. Judgment of general N. Y. COURT OF APPEALS. term affirming judgment for plaintiff Van Allen, respt. v. Farmers' Joint upon verdict, reversed, and new trial Stock Ins. Co.,applts,

granted. Decided March 8, 1876.

Per curiam opinion. The local agent of an insurance company who has authority to take ap

FORECLOSURE. PAYMENT. plications and callect premiums and

COSTS. transmit them to the company, can- N. Y. SCPREME COURT. GENERAL TERM, not waive compliance with the laws

THIRD DEPARTMENT. of a policy requiring proof of loss to be made within a specified time,

James K. Wetmore v. Ira A. Gale, where the policy required all waivers et al. and modifications to be in writing Where the defendant after commenceand signed by an officer of the com ment of the action pays a mortgage pany.

but not the costs, and sets up such This action was brought upon a poli

payment by answer, it cannot be cy of fire insurance. Conditions were stricken out as sham. annexed to it and made part of the pol- Costs in such an action are discretion. icy, one of which provided that in case

ary, and it was not certain that

the plaintiff' would be allowed costs. of loss or damage by fire, the insured should forth with give notice to the com

After commencement of the action pany, and within twenty days give a

defendant paid the mortgage songht to particular account of such loss, signed be foreclosed, but did not pay the costs. and sworn to by him. The policy also le set up this payment, admitted by provided that "the use of general terms plaintiff to be true, by answer, which or anything less than distinct, specific was stricken out as sham. argument, clearly expressed in writing

Held, That this answer should not and signed by an officer of the com- have been stricken out, the allegation pany, shall not be construed as a waiver being true, and the plaintiff still retainof any written or printed condition or ing the money paid him. Costs in restriction of this policy.” No written such an action are in the discretion of notice of loss was given by the insured the court. It was not certain, thereto the company directly, and no particu- fore, that costs would be allowed plainlar account of such loss was given un

tiff. til more than two months after the fire. Order reversed, with $10 costs and

Plaintiff claimed that the neg ect in printing, and the motion to strike out this respect was waived by defendant's denied. local agent, who was authorized to take Opinion by Learned, P. J.; Bocker applications for insurance and send and Boardman, J. J., concurring. them to the company, and collect the

VOL. 2.]

MONDAY JUNE 12, 1876.

[No. 18.

NEW YORK WEEKLY DIGEST.

Whitten. The creditors present at the meeting resolved that a composition of

10s in the pound should be accepted in BANKRUPTCY. COMPOSITION. satisfaction of the debts due to the credSECURED CREDITOR. itors, the composition to be paid in two

instalments of 5s. each, at three and ENGLISH HIGH COURT OF JUSTICE.

six months from the date of the conCHANCERY DIVISION.

firmation of the resolution, and to be Ec parte Hodgkinson. In re Best- secured to the satisfaction of the adwick.

journed meeting. The second meeting Decided January 31, 1876.

of the creditors was held on the 5th of A secured creditor is in no way bound January, 1871, when the resolution

by a compounding debtor's estimate passed at the first meeting was duly of the value of his security. lle is entitled to abstain from prov

confirmed, and it was further resolved ing his debt, or taking any part in that the joint and several promissory the composition proceedings, and, notes of the delstors and of John Perry when he has realized his security, he should be accepted as suflicient security may

claim from the debtor payment for the payment of the composition. of the composition upon the balance Due notice of this meeting also was which may then remain unsatisfied of the debt.

given to Hodgkinson and Whitten. This was an appeal from a decision The resolutions were afterwards duly

registered. of the judge of the Manchester County Court.

Hodgkinson and Whitten Thomas Bestwick and William Best-proved or tendered any proof in this wick were small-ware manufacturers at composition for the £3,300, or any part Manchester and Salford. On the 29th thereof, nor was any composition thereof November, 1870, they filed a liqui- on paid or tendered to them. The condation petition. The first meeting of position was duly paid to the other the creditors was held on the 2:d of De- creditors. The debtors remained in cember, 1870. The statement of the possession of the Paradise Mills and debtors' affairs then produced included other property comprised in the mortin the list of their creditors the names gage deed until the 2d of April, 1872, of Georre Enoch Hodgkinson and and during that period they were in Henry Whitten, and stated that they correspondence with Hodgkinson and were creditors for the sum of £3,300, Whitten respecting the sale of the as security for which they held a mort- mort aged premises, and endeavoured gage upon the Paradise Mills at Sal- to find a purchase for them. On the 14th ford, the property of the debtors, con- of July, 1871, they gave the mortgagees sisting of buildings, engine, boiler, a bill for £ 127 16s. 60., the amount of shafting, and machinery, the estimated a half year's interest on the mortgage value of which was £3,500. The mort- debt, dne in May, 1871. In August, gage referred to was dated the 7th of 1871, the debtors sold the loose maNovember, 1870, and it contained a chinery about the mills (which was not power of sale. Notice of the meeting included in the mortgage), and on the was duly given to lodgkinson and 14th of December, 1871, they paid the

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mortgagees £651 9s. 5d., part of the ten under their mortgage. The Regisproceeds of the sale, in part reduction trar afterwards stated the account beof the mortgage debt. On the 9th of tween the parties as follows: January, 1873, the debtors filed a sec

£

d. ond liquidation petition. On the 27th Due the 29th Nov., 1870 3354 1 0 of January the creditors resolved to Net proceeds of sale 1228 15 4 accept a composition of 20s. in the pound, payable in three instalments of

2125 5 8 6s. 8d. each, at four, eight and twelve months from the 10th of February, 10s. in lb. on £2125 5s. 8d. 1062 12 10 1873,. This resolution was confirmed Less proceeds of machi'y 651 9 5 at the second meeting of the creditors on the 10th of February, 1873, and was

Balance

£411 3 afterwards duly registered. The statement of the debtors produced to these

The debtors contended that the mortmeetings shewed that Hodgkinson and gagees had no right to prove under the Whitten were creditors for £2,155 17. first composition, and a special case was 9d., for which they held as security a of the court. The case stated the above

settled by the Registrar for the opinion mortgage on the Paradise Mills, together with engine, boiler, and shafting facts, and the question submitted for the therein, the value of which was estima- opinion of the court was whether Hodg

kinson and Whitten were bound by ted at £2,200. The surplus value of this security, £14 28. 3d., was in the having elected to stand by their securdebtor's statement treated as part of ity under the petition of the 29th of their assets. Due notice of the meet

November, 1870, or whether they were ings was given to Hodgkinson and entitled to payment of the £111 3s.

5d. Whitten, but they never proved or tendered any proof in this second com

The judge was of opinion that the position for their mortgage debt or any as a close of the proceedings in the com

registration of the resolutions operated part thereof, nor was any composition paid or tendered to them. On the 1st position, and that the mortgagees, be

ing bound by the composition, could not of June, 1873, Hodgkinson and Whitten sold the property comprised in the now come upon the estate for the £411

3s. 5d., and that, as a matter of fact, mo. tgage for £1228 15s. 4d. On the 29d of August, 1873, they commenced they had elected to stand upon their an action against the debtors for the security, and were therefore not entitled

to payment of the £111 3s. 5d. An sum of £2151 14s., the balance which they claimed to be due in respect of the

order was accordingly made to that ef

fect, and that the costs of the preparamortgage debt. On the 7th of August, 1874, an order was made by the county should be paid by the mortgagees, but

tion and argument of the special case Court, restraining further proceedings in the action, and directing also a ref

. no order was made as to the costs of the

action. erence to the Registrar of the court to inquire how much, if anything, still

Hodgkinson and Whitten appealed. remained due to Hodgkinson and Whit lleld, The creditors are, no doubt,

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