Fowler, et al. respts. v. The New York

ing house of the New York Gold Exchange.

The next day (Black Friday), was a day of extreme confusion, and parties having outstanding contracts in gold to be settled on that day through the defendant, were requested by defendant's president to clear outside of the defendant as a clearing house.

J. Brown & Co. acted on this request and settled all their contracts outside of the defendant.

Gold Exchange Bank, applt. Decided December 30, 1875. A principal who ratifies the act of a voluntary agent who receives money for his principal and makes a loan J. Brown & Co. immediately intending in his behalf as a condition of such to settle outside the bank and deliver receipt, is entitled to receive the the gold, sent to Chase, McClure & Co. money so paid to the agent upon the repayment of the loan made by the Agent.

A voluntary agent is entitled to be reimbursed for expenses incurred in behalf of his principal, on the ratification by the principal of the agent's act.

This appeal is from a judgment in plaintiff's favor, for $94,255 upon the report of a referee.

to say that they, J. B. & Co., wished them to pay for the $50,000 gold they had bought from them at $1.41. Chase, McClure & Co. referred J. B. & Co. to Chapin, Bowen & Day, who they said would pay for it and take the gold. On going to Chapin, Bowen & Day they informed J. Brown & Co. that they, C. B. & D., had given the currency due to the defendant, and obtained from the defendant $50,000 gold which they were to receive.

When the contract was made it was expected to be settled through the defend

The facts out of which the action arose are as follows: On September 23, 1869, the day before what is known as "Black Friday," the plaintiff's composing the firm of Fowler Brothers, wishing to sell ant. The practice in such settlements $50,000 of American Gold, gave an order was as follows: The parties selling sent to James Brown & Co., brokers, to sell a ticket to the defendant requesting the that amount of gold for them. J. Brown defendant to deliver the amount of gold & Co. on the same day executed this or- sold and receive the amount of currency der, and sold for plaintiff's account fifty- thereon specified, and the party purchasthousand dollars gold coin for settlement ing sent a ticket or request to the defendon September 24, 1869, the next day at ant to receive the amount purchased and $1.41 in currency for each dollar of pay the price in currency specified. gold coin, such sale, being to the firm of These tickets authorized the defendant to Chase, McClure & Co. On the same day perform the requests contained in them. J. Brown & Co. gave, and plaintiffs received in due course of business, notice of such sale.

Chase, McClure & Co. on the same day gave up to J. Brown & Co. the name of Chapin, Bowen & Day as the parties who would receive and pay for the gold in lieu of themselves, and the substitution was accepted. Defendant was the clear

But J. Brown & Co. having sent in no statement and acting on the request of defendant's president to settle outside, endeavored to settle accordingly. But the tickets in this transaction with Chase, McClure & Co., having gone into the bank, the defendant, and not recalled or withdrawn, through inadvertence and the confusion and excitement then exist

ing, this contract was settled by defend- probable that the defendant was put to

If the gold had been purchased by the defendant, or procured from some other source by which it was subject to expense in the transaction in its conduct as agent for the plaintiffs or their brokers, J. Brown & Co., the principal, J. B. & Co., on the ratification of an act of that na-26th, 1872. ture, would probably become bound to protect and fully reimburse the agent, the defendant. But it was not even alleged in its answer, or in any of the interviews shown by the evidence, that defendant had been subjected to any expense or trouble whatever in obtaining the gold delivered to it; and it is not

the indebtedness of whatsoever nature been sent to the defendant, on application there may be of said firm, in full.”

to him by plaintiff, Walter S. Pierce, for payment of the amount awarded, he made an unqualified promise to pay.

A. H. HI. Dawson and J. S. L. Cum

mings, for applt.

E. T. Hyatt and Thomas Allison, for respts.

Subsequently, on October 4th, 1872, said Junius J. Pierce and the defendant entered into another agreement, which recited the agreement of July 26th, 1872, for dissolution also, that the accounts between Pierce, Morrison & Co., (the dissolved firm) and Walter S. Pierce & Co., were unsettled and the balance unascer- Held. Although the weight of authoritained, and provided that for the purpose ty may be in favor of the rule that one of ascertaining such amount, in case partner cannot bind his co-partners by Junius J. Pierce and E. H. Morrison submission to arbitration, yet any mancould not agree thereon, the settlementner of actual authority given by one partthereof should be referred to the plaintiff, Walter S. Pierce and one R. M. Watrus, with power if they could not agree to select a third party to decide between them, whose decision should be final. This agreement then provides that upon the ascertainment of the amount of said indebtedness by either of the above mentioned means, one David Clopton, the depositary of an accepted draft, was author-ence and participation in the arbitration ized and required to apply the same or so proceeding. The non-signing partner much thereof as might be necessary to having consented to and authorized the the payment of said amount. signing by the other, and having subseIn consequence of the last named quently ratified the deed thus done, by agreement, the arbitrators and umpire acts and words, rendered the submission made an award, that E. H. Morrison mutual and binding on both him and the should pay Walter S. Pierce & Co., defendant. $2,270.67 and also decided certain other questions.

The answer set forth the written instru

ments set forth in the complaint and

claimed the said award was void.

The plaintiffs, to maintain their case, put in evidence the instruments alleged in the answer.

ner to his co-partners will be sufficient to bind the firm. It is enough whatever its form, if it contains a distinct expression of the intent to allow the partner acting to do it for him. In this case the partner who signed the agreement represented the firm in signing it, and signed it with the knowledge and consent of his co-partner, Walter S. Pierce, established by his pres

That the award embraced the subject. confided to the arbitrators.

The intendments are in favor of the validity of an award. The referee erred in rendering judgment for the defendant.

New trial ordered, costs to abide the event.

Opinion by Brady, J.; Davis P. J. and

The defendant moved for judgment on Daniels, J. concurring. plaintiff's proofs.

Upon the referee's report in defendants' favor judgment was entered.

The agreement of October 4th, 1872, providing for the arbitration was signed by J. J. Pierce, but with the knowledge and consent of the co-partners.

BANKRUPTCY.

EXEMPTION

U. S. DISTRICT COURT, GEORGIA.

In re Stewart and Newton, 13 N B.
R. 295.

It was proved on the trial before the referee, that after a copy of the award had No individual exemption can be allow

ed out of a partnership estate at the that he had a right to reserve enough to expense of the joint creditors.

State constitution and laws.

pay the expenses of his family for a reasonable time.

The firm of Stewart & Newton, and Stewart individually, were bankrupts. The Held, Brown, J., 1. That as the payment partnership estate reduced to cash to counsel was made at the time the seramounted to $1,000. Stewart, as the head vices were performed, that a bankrupt had of a family, claimed this amount as ex-a perfect right to employ counsel and to empt under the bankrupt act, and the pay him, such payment ought not to be regarded as a preference or a fraud on the act; that the preparation of the petition and schedules was a work requiring skill, and as it was the duty of the insolvent upon discovering his insolvency to go into bankruptcy, it was quite proper to employ counsel and pay him. It might be otherwise if the service had been performed on credit and the money afterwards paid. The question of preference might then arise.

Held, Erskine, J., notwithstanding the courts had entertained conflicting views upon this subject, the weight of authority was against the allowance of the claim

here advanced.

(In re Handlin,) 12 N. B. R. 49.

BANKRUPTCY. PREFERENCE.

EXEMPTION.

U. S. DISTRICT COURT, E. D. MICHIGAN.
In Re James Thompson.
13 N. B. R. 300.

2. That the debtor has no more right to receive or reserve the cost of professional services to be rendered after his adjudication than to reserve money for any other future purpose.

3. That the word "necessaries" in sec

Payment to counsel for services in pre- tion 5,045 of the act, includes money, and paring bankrupts' petition and schethat the assignee-taking into view all dules is not preferential. Bankrupt is entitled to an allowance in the circumstances of each case-can, submoney from his estate for the tem-ject to the final decision of the court, alporary support of himself and fami- low the bankrupt such sum from the ly, not exceeding, with his furniture estate as he may deem proper for the temand other articles, five hundred dol-porary support of the bankrupt's family, other property, five hundred dollars. not exceeding, with his furniture and

lars.

He is not entitled to receive the proba ble expenses of procuring his dis charge.

The bankrupt was adjudged a bankrupt on his own petition, on June 10th 1875; two days prior to this, and upon the same day upon which his petition and schedule were drawn, he raised $1,000 upon his real estate, out of which he paid his counsel $110 for drawing his petition, &c. The balance he held. The assignee petitioned for an order that he account. and pay over. The bankrupt claimed the payment to counsel; that he should be allowed to retain suflicient to pay the expenses of procuring his discharge, and

as to those which arise subsequently. are within the equity of those expressed. Action brought to establish title to and (Bank of Alabama v. Dalton, 9 Howard recover possession of land in possession of 522. McIver v. Ragan, 2 Wheaton 25, and claimed by defendant. The defend- Bucklin v. Ford, 5 Barb. 393; Hudson ant among other defenses pleads the v. Carey, 11 Sergt. & Rawle, 10.) The statute of limitations of two years, found plaintiff has been under no disability to in section 2 of the Bankrupt Act.

Plaintiff and defendant both claim title from the same source, from Person the

bankrupt; the plaintiff by virtue of his office as assignee, and the transfer to him of all the property of the bankrupt, and the defendant by virtue of a sale, before the bankruptcy of Person, under a mortgage foreclosure.

sue; the courts have been open to him, and the defendant at all times liable to had run against him before this action be sued by him. The limitation provided was brought. He falls within the Act and the law makes no exceptions.

2. The theory urged that the limitation applies only to new causes of action arising in favor of the assignee after the bankruptcy, and not to those which existed before the bankruptcy, and had come to the assignee by the assignment, could not be maintained. The provisions of the 14th and 16th sections of the Bankrupt Act are not susceptible of any such

Person was adjudged a bankrupt on the 9th of March, 1868; plaintiff was appointed his assignee on the 22nd of April, 1868, and this action was brought on the 21st of August, 1871, over three years after the appointment of plaintiff as assignee. The plaintiff did not discover the property and his right thereto until construction; it is too narrow. about the 1st of July, 1871, about seven weeks before the commencement of this

action.

Held, That the question presented is, does the fact that the plaintiff was ignorant of his rights relieve him from the bar of the statute; that no case could be

The

provisions of the 2nd, 14th and 16th sections must be construed together. So considering them their meaning appears plain, and the effect of the three sections is this: the assignee may sue for and recover the estate, debts and effects of the bankrupt in his own name, and have the like remedy to recover thesame as found sustaining plaintiff's views; that if the bankrupt might have if the decree in it had been the intention of the law-bankruptcy [had not been rendered and making powers that the limitation should no assignment had been made, provided begin to run from the time the plaintiff his suit for that purpose is brought within discovered his right of action, and not from the time his right of action accrued, it would have said so in unmistakable terms; that to introduce such an exception into the statute, would be an act of legislation on the part of the courts, and would be directly contrary to the policy of the Bankrupt Act, which looks to the speedy settlement of the bankrupt affairs.

It might be equitable in some cases that this view of the plaintiff should prevail, but it is not competent for the l courts to engraft other exceptions on the statute, even on the ground that they

two years from the time the cause of
action accrued to him. On all matured
claims and demands the cause of action
accrues to the assignee at the date of the
assignment; all others from their ma
turity or at the time an action will lie,
and he must sue within two years from
these dates respectively.

Judgment for defendant.
Opinion by Wood, J.