fecting the transaction, as well as from BILLS AND NOTES. PAYMENT. the statements contained in the affida


The National Bank of Newburgh, The following circumstances, name-respt. v. Smith, applt, ly, that the goods were not needed for

Decided May 25, 1876. family use when they were bought; A general deposit of money in a bank that the reason assigned for the par

will not operate as payment of a chases being evidently untrue; the ear note held by the bank, and which has ly failure of the defendant; the fact that been protested, without specific inthe defendant had in no way indicated

structions that it be so applied. any disposition to give up the goods

This action was brought against dewhen their price was demanded, as well fendant as the endorser of a promissory as other circumstances in the case, just-note for $500, payable at plaintiff's ify the conclusion that the purchases bank. It appeared that when the note were made in the expectation of an ear- fell due, G., the maker, had no funds ly failure which would prevent the in the bank, except a balance of $10 43, plaintiffs from obtaining payment.

and the note was duly protested. That proof of fraud, which always About two weeks afterwards G. inade endeavors to guard itself from discov- a general deposit of a check for $500 ery by concealment, is peculiarly de. without any specific directions as to the pendent upon the force of circum- application or appropriation of it. Two stances for its support, and when they days after the deposit another note of are so decided as satisfactorily to estab- $500 made by G., payable at plaintiff's lish the conclusion that an intent to de. bank, fell due and was paid upon prefraud existed, it is not to be rejected sentment by plaintiff. Defendant claimbecause of the positive denial of it by ed that the note in suit was paid by the the parties concerned in the commission deposit of the $500. of the wrong.

Samuel Hand, for respt. The wife of the defendant, in con

Cassedy & Brown, for applt. tracting the debt, acted as his agent. Held, That the general deposit made

The goods were received at his resi- by the maker of the note in suit after it dence for the use of his family; he had been protested, without regard to the had the benefit of them, and became note, did not of itself operate as a payliable to the plaintiffs for the payment ment; that as there was no agri ement of their purchase price.

that the deposit was to be appropriated The debt was fraudulently incurred, for such a purpose, the act itself indiand defendant was lawfully held to cated that there was no intention : n bail by the order made.

the part of the depositor or pl: intiff to 21 N. Y., 238; Id., 239, 240; 25 N. apply it upon the note. The subseY., 593, 599, 602; 40 N. Y., 454; 50 quent disposition of the money, without Barb., 349, 386-7.

objection, confirms the inference that The order appealed from should be there was no design thus to appropriate reversed.

it. In the absence of any express diOpinion by Davis, P. J.; Daniels rections or an agreement to that effect J. concurring.

it was optional with the bank, whether

it should apply the money or not upon was paid at the rate of $1200 per anthe note in suit, and it was under no num for his services up to January 1st, positive legal obligation to do so. 34 1872, but that nothing was paid from Barb. 298; 2 Comst. 352; 6 Wend. 611. January 1st, 1872 to June 1st, 1872, al

Judgment of General Termn, affirm- though plaintiff had rendered services ing judgment in favor of plaintiff, at- during the latter period. firmed.

That in the course of his duties plainPer curiam opinion.

tiff was accustomed to go of errands

for the judges. EVIDENCE.

The evidence introdnced by the de

fense showed that there was a contest in N. Y. SUPREME Court. GENERAL TERM

the fall of 1871, between the Comptroller FIRST DEPARTMENT.

and the Judges of the Common Pleits as Edward C. Genet, respt. v. The

to the appointments of the officers of Mayor, &c., of the City of New York, the court; that a letter was written by "pplt.

the Comptroller to the Judges requestDecided May 26, 1876.

ing information as to the number of When upon the trial at circuit a cir- officers required for that court, in reply

cumstance or fact appeurs inconsist- to which letter a letter dated October ent with the defence, evidence ex- 17th 1871, was addressed to the Compplanatory of such fact is proper. Where there is a plain conflict of evi-troller by the Chief Justice of the Court dence upon one of the issues raised of Common Pleas, stating that twenty by the pleadings, it is error to take persons would be sufficient, and stating the question from the jury.

the names of twenty persons who had Appeal from judgment recovered on been designated as such officers. Plainthe verdict of a jury directed by the tiff's name was not among them. court, and from order denying motion That after the above letter no person for a new trial upon the minutes.

was recognized as an officer of the Action brought to recover for ser-court except those included in the list vices performed by plaintiff as an offi- designated by said letter. cer of the Court of Common Pleas from A pay-roll of the attendants of the the 1st of January to the 1st of June, Court of Common Pleas for the months 1872, inclusive, at the rate of $100 per of October, November, and Decemmonth.

ber, 1871, was offered in evidence Defence set up plaintiff was never upon which the plaintiff's name appearlegally appointed such officer, his ap

ed. pointment having been made by the The Clerk of the Court of Common Comptroller of the city of New York, Pleas, as a witness for the defence, was and a general denial that the services asked the question: "Do you know sued for were ever rendered.

how that man's (plaintiff's) name came On the trial plaintiff proved his ap- to be on the pay-roll after October 17th, pointment on the first day of October, 1872?" 1870, by Comptroller Connolly, and The question was objected to, and that he rendered services from that question excluded. time up to June 1st, 1872. That he Defendant's counsel offered in evi

dence pay-rolls for the months of Jan. upon the pay-roll, the judgment should uary, February, March and April, 1872, be reversed, and a new trial ordered, certified by the Clerk, upon which with costs to abide the event. plaintiff's name did not appear.

Opinion by Daniels, J.; Davis, P. At the close of the case the justice J. and Brady, J., concurring. presiding directed a verdict for the plaintiff.

PARTNERSIIIP. D. M. Cotton for respt.


Estate of Nathaniel P. Gordon, deHeld, That it was proper for the deceased. fendants to show by the Clerk, if he

Decided May 27, 1876. knew, how plaintiff's name came to be a partner to whom the partnership is upon the pay-roll after it had been indebted can have no satisfaction e. dropped from the list of attendants up

cept out of what remains after the on the court. It might have appeared

partnership ilebts are paid. that it resulted from some mistake or

The decedent was the surviving memmisapprehension as to the facts. And ber of the firm of which he had been that would have tended to remove the a copartner. Hlis copartner in his lifeinconsistency in which the defendant time deposited certain of his individual and the witness both appeared, to some securities and private property with a extent, to be involved. The evidence creditor of the firm, as collateral secu should have been received.

rity for a partnership debt. The debt nel further, That from the evi- remained unpaid at his death, and also dence there was a conflict of testimony at the death of the surviving partner, as to whether the plaintiff continued in the present decedent, which occurred any manner to be regarded as an at- some time after. Letters of administendant upon

the court after the 1st of tration were taken out upou the estate January, 1872. The facts that he was of each partner. The settlement of the not retained among those designated by affairs of the firm having devolved upthe judges ; that he was not recognized on the administrator of the survivor, in or regarded as an attendant by the the fulfilment of his duty, he entered Clerk, and that his salary was not paid into an agreement and contract with after the 1st of January, 1872, very di- certain creditors of the firm, and the rectly tend

to establish the de-administrator, widow, and creditors of ence which was made in the case the other deceased partner, whereby the They tended to show that he was not in accountant was authorized and empowfact employed, and that he must have ered to sell at private sale, certain real understood that to be the case.

There and personal estate of the firm, to was sufficient certainty upon the sub- the creditor whose debt had been securject to entitle the defendant to have ed by the deposit of collateral securithe case submitted to the jury.

ties, as stated, and with the proceeds For that reason and because of the first pay certain other firm creditors, exclusion of the evidence proposed to and apply the balance to the liquidabe given by the clerk explanatory of tion of the claim of the secured credthe retention of the plaintiff's name


It was further agreed that account- debtedness, claimed to be entitled to ant should receive from the secured the entire balance in preference to the creditor, all the property, whether of firm creditors. The fund was awarded individual or firm assets, deposited as to the administrator. collateral security, and "use and apply llanna, J.-It is a general rule of law, the proceeds of the former, so far as both in England and in this country, may be requisite, for and to the pay- that partnership assets must first be apment of any balance which shall remain lied to the payment of partnership due to the Philadelphia and Reading debts. Parsons on Partnership, 340 ; Coal and Iron Company by the firm of Bispham's Eq., 461; 8 Wright, 503 ; Repplier, Gordon & Co., after the ap. 9 Wright, 484. propriation of the proceeds of the col

The partner paying a debt cannot be lieries to the liquidation thereof, as substituted to the rights of the creditor aforesaid, the respective rights of the against his copartner; he must first acfirm estate, and of the separate estates, count for the profits of the business in in and to the proceeds of the said col- which they were jointly engaged. If laterals which shall be so used, and the there is anything due him, account renrespective rights of each of said estates dered is his remedy at law, and to that arising from the said use of those which action, or to a bill in equity for an acshall be used, not to be in any manner count he ought to be remitted. Baily affected or prejudiced hereby, but to re- v. Brownfield, 8 IIarris, 46. main for future adjustment or deter An advance to the firm, as against mination.” This agreement was car- creditors, is to be treated as an addition ried out, the conveyance made, and to to the capital, and does not ipso facto discharge the balance of the debt due constitute the partner a creditor of the the secured creditor, not only firm col- firm.

A partner to whom the partnerlaterals, but a portion of the indi. ship is indebted can have no satisfacvidua! securities, deposited in the man- tion but out of what remains after all ner stated, were assigned, and the bal- the joint debts are paid. ance returned to the administrator of

The pledge by the deceased partner the deceased partner, as his separate es in his lifetime of his individual prop

erty, was

a. loan or advance to the There were, however, creditors of the tirm. It would be contrary to equity firm, who were not parties to and never to hold him to be a creditor of the firm sanctioned or ratified this agreement and entitled to a preference in the disand settlement.

tribution of the firm assets, should his Upon the audit of the account collaterals be used to pay his debts; or of the administrator of the

sur-to hold in case of insolvency that he viving partner, they claimed to be was entitled to share pro rata with the awarded their respective claims against rest of the creditors. the firm, and the administrator of the Neither can the administrator claim deceased partner, whose separate prop- to be a creditor of the firm to the prejuerty had been applied by accountant, dice of the other creditors, as he stands in pursuance of the agreement men- in the same position as the decedent tioned, to the payınent of the firin in- whom he represents.


The exceptants were not parties to the direction of the court, gave a versettlement made by the accountant with dict for the plaintiff for the whole a creditor who was thereby given a amount claimed. preference, and their rights cannot be The defendant filed a motion in araffected or diminished thereby. rest of judgment, on the ground that the

Being of opinion that the claims of words set forth in the declaration are the creditors are entitled to payment, not actionable, and because the declaand that the balance should be retained ration does not state a cause of action by the accountant to await a settlement which entitles the plaintiff to recover. between the partners, the exceptions are the court ordered the motion to be sustained.

heard at the general term in the first in

stance. SLANDER

The general term sustained the moU.S. SUPREME COURT.

tion in arrest of judgment, and decided Marie A. N. Pollard, plttf in error,

that the declaration was bad in subv. Jacob Lyon, deft in error. (Octo-stance. Judgmeat was subsequently

rendered for the defendant, and the ber, 1875). Words spoken, imputing unchastity to plaintiff sued out this writ of error. a female, are not actionable without

Clifford.JCertain words, all adinit, speciul damage.

are in themselves actionable, because The special damage should be alleged the natural consequence of what they

and proved specifically. (See, how- impute to the party is damage ; as if ever, Laws of N. Y., 1871, c. 219.) they import a charge that the party has This was an action on the case for slan- been guilty of a criminal offence involvder, rought by plaintiff to recovering moral turpitude, or that the party is damages for the injury to her name and infected with a contagious distemper, fame.

or if they are prejudicial in a pecuniary The declaration was as follows:

sense, to a person in office, or to a per“ That the defendant, on a day namn- son engaged as a livelihood in a profesed, speaking of the plaintiff, falsely and sion or trade, but in all other cases the maliciously said, spoke and published party who brings an action for words of the plaintiff the words following: spoken must show the damage he or • I saw her in bed with Captain Denty.' she has suffered by the false speaking of That at another time, to wit, on the same the other party. day, the defendant falsely and mali Unless the words alleged impute the ciously spoke and published of the the offence of adultery, it can hardly plaintiff the words following: 'I look- be contended that they impute any ed over the transom-light and saw Mrs. criminal offence for which the party Pollard,' meaning the plaintiff, ‘in bed may be indicted and punished in this with Captain Denty,' whereby the district (District of Columbia), and the plaintiff has been damaged and injured court is of opinion that the words do in her name and fame, and she claims not impute such an offence, for the readamages therefor in the sum of ten son that the declaration does not allege thousand dollars."

that either plaintiff or defendant were The defendant pleaded the general married at the time the words were issue, and on the trial, the jury, under spoken. Our conclusion is that plain

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