AGREEMENT IN FRAUD OF fifty pounds to plaintiff

' by the trustees' CREDITORS.

as a consideration for giving up the esEnglish High COURT OF JUSTICE. Com- tate. The declaration is bad, and the

MON PLEAS DIVISION. judgment must be arrested. Blacklock v. Dobie et al.

Rule absolute. Decided April 26, 1876.

Opinion by Coleridge, C. J.; Brett

and Lindley, J.J., concurring. An agreement whereby, in considera

tion of an assignment by a debtor of
all his estate to two of his creditors WARRANTY. PRACTICE.
us trustees for the benefit of all the

(reditors, they agree, upon realization
of the estate, to pay the debtor £50,

Dounce, respt., v. Dow et al. applts. maile without the consent of the other Decided March 21, 1876. creditors, is illegal as a fraud on their rights.

When a party uses a large portion of

goods sold to him, after an opportuAction for breach of an agreement. nity to examine them, he must be The plaintiff entered into an agree

deemed to have accepted them, and to ment with defendants, two of his cred

have waived any implied warranty.

A statement made by a party a year beitors, whereby he agreed to execute to

fore the sale that he was receiving them, as trustees for his creditors, an

px pipe iron,which was tough and assignment of all his estate and effects

soft, is not a warranty that all the upon trust for the equal benefit of all iron of that brand which he might hus creditors, and to make to them thereafter sell was of that character. a full disclosure of all his estate and ef. When a party requests certain specified

questions, for which there is no valid fects, and the defendants agrced that

ground, to be submitted to the jury, upon realization of his said estate ard

it is to be assumed that he intends to effects, they would return and pay to waive the submission of other quesplaintiff the sum of fitty pounds.

tions. The plaintiff performed his part of the This action was brought upon a promagreement, but defendants failed to pay issory note given by defendants to the fifty pounds, whereupon defendant plaintiff, for a quantity of iron. It apbrought this action.

peared that defendants, who were manAt the trial a verdict was given for ufacturers of agricultural inplements, plaintiff.

applied to plaintiff, a dealer in iron, for A rule was granted to arrest the ten tons of “xx pipe iron," and the latjudgment on the ground that the agree- ter procured the same for them, and rement set out in the declaration was il- ceived as pay the note in suit. De. legal, immoral, and contrary to the poli- fendants, without testing the iron, mixcy of the bankrupt law.

ed five tons of it with other iron, and Ileld, That the agreement was a used it in making castings, which, ou fraudl on the creditors under the bank account of this iron, were found to be rupt laws. It appears on the face of worthless. Both parties supposed that the agreement that the realization of the iron was first quality for the purthe whole of the estate was necessary pose for which it was intended. There in order to defray the plaintiff's debt, was some slight evidence tending to and yet it stipulates for the return of show that the iron delivered was not

“xx pipe iron.” Defendant's counsel In an action for an allege i conversion requested certain questions, not includ of goods, where the defence is a sale ing this, to be submitted to the jury.

of saill goods, anil detenlants rely The court refused, and directed a ver

upon a letter of plaintiff

' in relation

thereto, containing the words :dict for plaintiff.

By amounts received on account, J. B. Adams, for applts.

$32,372.63," evidence tending to J. R. Ward, for respt.

show that this sum was an indebteilNeu, That in the absence of fraud,

ness of plaintiff' to defendants in

other trunsictions, which he wild willplaintiff was only bound by his con

ing to apply in payment for the tract, which was to deliver “xx pipe goals, is material and almissible, 118 irou ''; that an implied warranty that it woulil destroy the effect of the allthe iron was merchantable could not be knowleilgment in the letter as un ail. atiirmed ui less the contract was exec

mission of a consummated sare, und tory; that defendants, by using a large

the receipt of pryments on account. portion of the iron, after an opportunity

This action was brought to recover to examine and ascertain whether it for the alleged conversion of a quanwas merchantable, must be deemed to tity of wine belonging to plaintiff, who have accepted it, and to have waived was an importer of wines. It

appear. any implied warranty.

ed that a portion of the wine was stored Also held, That it must be assumed defendants, who kept a bonded that when a party requests that certain warehouse, for safe keeping, a part in specified questions be submitted to the August, 1866, and a part in November, jury, for which there is no valid ground, 1868, upon the repre entation that they that he intends to waive the submission would probably purchase it. In Febof other questions, and that therefore ruary, 1870, plaintiff sent defendants the submission of the question as to bills of the two lots, dated as of the whether the iron delivered was that con time when the win


time when the wines were :'elivered, tracted for was waived.

for the purpose of bringing them to a Also held, That a statement made a

determination whether they would puryear before the sale by plaintiff, that he chase or not.

These bills were not was receiving “xx pipe iron,” which agreed to by defendants. In Novem was tough and soft, would not enure ber, 1870), defendants failed, before as a warranty that all the iron of that having agreed upon the price and brand he night thereafter sell was of terms of sale, and having in the mean.

time sold the wine. Detendants intro. that quality.

Judgment of General Terin, affirm- duced in evidence a letter from plaining judgment on verdict for plaintiff, tiff

, which contained these worils :affirmed.

“By amounts received on account,

$32,272.63.” Plaintiff offered to ex. Opinion by Church, Ch. J.

plain this credit, and testified that it

alluded to note transactions between EVIDENCE.

him and defendants, and offered eviN. Y. COURT OF APPEALS.

dence as to what those transactions Richard, applt., v. Wellington et al., were, and of the facts upon which the respts.

credit was based; in substance off ring Decided June 6, 1876.

to show that this suun was an indebted

ness of plaintiff to defendants upon eighth street, in the city of New York. other transactions which he was willing The contract was executed on the 25th to apply in payment for the wines. day of October, 1869, and by its terms, Ti is evidence was excluded.

it was to be fully and finally performed, C. L. Lyon, for applt.

on the 25th day of Noveinber followWm. A. Butler, for respt.

ing, at noon on that day, at the office lleld, error; that the evidence was of Pinkney & Spink, counsellor, &c. material and was improperly excluded, The defendant did not appear at that as it would have destroyed the effect of time and place, but the plaintiff did, the credit acknowledged in the letter and was ready and willing to convey as an admission of a consummated sale, the property. But it appeared that the and the receipt of payments, on account. gas fixtures had not then been put in

Judgment of General Term, affirm- the dwellings, and the contract requiring judgment of nonsuit, affirmed.

ed by its terms that they should be Opinion by Rapallo, J.

completely finished by the plaintiff' and

provided with gas fixtures. In this rePRACTICE. EXCEPTIONS. spect plaintiff was appareatly in deN. Y. SUPREME Court. General Term, fault

, and tlic failure was a material

one, because the expense of supplying FIRST DEPARTMENT.

the fixtures would be at least $60 ) for Thomas F. Sharkey, respt., v. Jean

each one of the dwellings. G. Torrillion, applt.

To excuse himself from the default, Decided May 1, 1876.

the plaintiff clained that it had been In eccrption in the decision of a judge agreed between himself and the defenddenying a motion for a new trial on the minutes, on the groand that the ant, after the contract was excented, erilict is agiinst the weight of evi- that an abatement of either six or eight ilence, instead of its being on the hundred dollars should b: made, in the ground of insufficiency of evidence purchase price of each of the lots, for to support it, is valid as to form, which the defendant should supply the though the ground of the motion does not come within the express terms dence alone it appeared that a paper to

gas fixtures himself. By his own eviused in $26+ of the Code.

that effect was written for and subscriAppeal from judgment recovered on bed by the plaintiff. Ile testified that verdict, and from order denying motion it was done in Judge Alker's office, and ma'le upon the minutes of the court for

that he was the counsel for the detend

ant, who was also present at the time The motion made for a new trial up assenting to the change. When the on the minutes was placed upon the instrument was subscribed, he testitied rround that the verdict of the jury was that it was left with, and retained by against the weight of evidence. The action as it was finally tried, was dence testity to any delivery, or accept

Judge Alker. He did not in his cvifor damages for the breach of a con,

ance of it, by the defendant, but simply tract, by which the defendant covenant- that it was taken and retained by Judye ed to receive the conveyance, and pay Aiker. The defendant denied the exthe purchase price, of seven houses and istence of any such understanding, or luts, on the southerly side of Seventy- agreement, and it was not pretended

a new trial.


that he executed it, and the evidence of and directing a new trial on payme: t Judge Alker was positive that he had by the de'e dant within twenty days such paper,

and was not authorized after notice of the decision, of the costs to do any snch thing as the plaintiff of the trial already had, and ten dollars stated he had done, concerning the gas costs of opposing the motion; the costs fixtures. There was no evidence given of the appeal to abide the event of the to show that he was in fact authorized action. to receive any agreement, for the de Opinion by Daniels, J.; Davis, fendant, exonerating the plaintiff from P. J., concurring. the performance of the co tract in any respect whatever. The jury returned NATIONAL BANKS. RECEIVa verdict for plaintiff for $7,000.

ERS. Ileld, That without some evidence U. S. CIRCUIT COURT, WES! ERN Disupon the subject from which it could be

TRICT OF TENNESSEE. implied that Judge Alker intended to

Wright v. The Merciants' National assent to the acceptance of the writing Bank. for defendant, no delivery of it would In the absence of action on the part of exist from the mere c rcumstance that the Controller of the Currency, the Judge Alker may have received, and courts have power to appoint a reretained it. He testified that he had ceiver of a National Bank upon apno anthority from the defendant to do plication by a judgment creditor,

subject, possibly, to his being superthat, and none was shown by the plain

seded by the action of the Controller. tiff, beyond the fact that Judge Alker When the general Banking Law does was defendant's counsel, which would not provide for action by the Confall very far short of supplying him troller, a judgment creditor is entiwith authority to saodify or change the

tled to the aid of a court of equity. contract the defendant had entered in Demurrer to judgment creditor's bill. to. Upon this subject the evidence of The bill set forth in substance that the plaintiff was vitally defective. complainant had recently obtained

Held furiher, that though the judgment of $10,000 against defendground of the motion for a new trial, ant in the state court; that she was unto wit: that it was against the weight able to obtain payment of the same; of evidence, was not expressly one of that the bank had closed its doors, disthe grounds within the provisions of the continued business, and was insolvent; Code, for a motion for a new trial upon and that in contemplation of such inthe minutes, yet it was clearly within solvency had conveyed and transferred the intention and spirit of $ 264, as no all its assets to one creditor, viz: a corgood reason could have existed, which respondent bank in the city of New would have induced any legislative dis- York, which was also a large stock oldcrimination between the case of a ver- er in defendant's corporation; that this dict standing on insufficient evidence, preferred creditor is appropriating all and one against the weight of evidence. the assets to its own debt; that nothing

The order denying the motion made will be left for the plaintiff, or can now be upon the minutes for a new trial, collected by legal process, and she should therefore be reversed, and an therefore prays for an injunction and order entered setting aside the verdict, I receiver.

Demurrer was taken upon the sole izing such appointment by the Conground that under the provisions of the troller of the Currency. I am clearly national banking law, a receiver could of the opinion, however, that when the only be appointed by the Controller act does not provide for the introducof the Currency.

tion of the Controller, a judgment Brown, J.-If a judgment creditor creditor is entitled to the aid of a court may not invoke the aid of a court of of equity. equity he is powerless to enforce his Nor is there any force in the objecclaim, unless he can persuade the tion that a receiver appointed by this Controller of the Currency to inter- court would be powerless to obtain pos. fere in his behalf. Sec. 5242 of title 62 session of the surplus of bonds on deof the Revised Statutes, which applies posit in Washington for redemption of to cases like the present one, makes all its circulating notes. I cannot assuine such transfers and conveyances null and that the Controller of the Currency and void. No method, however, is pro- would refuse to comply with the order vided of winding up a bank guity of of a court having jurisdiction of the any

of the acts mentioned in the section, case. nor is the power given to the Con On the whole, I am of opinion that troller of the Currency apparently de- in the absence of action on the part of signed to reach these cases. It is doubt. the Controller of the Currency, this ful whether he would have power in curt has the power to appoint a ilsuch cases to interfere and a point a ceiver upon the application of a judg. ieceiver.

inent creditor, sutject, possibly, to his But even if the power had been given being superseded by the action of the to the Controller of the Currency to Comptroller. appoint a receiver in cases like the pres Demurrer overruled. ent, in the absence of restrictive lan guage, it is at least doubtful whether

STOCKHOLDERS' LIABILITY. it should be regarded as forestalling the jurisdiction of the courts.


FIRST DEPARTMENT. general rule in regard to the election of remedies is that " Where a right orig Cornelius H. Delamater, respt. v. inally exists at common law, and a stat. James A. Rhodes, applt. ute is passed giving a new remedy withi Decided May 1, 1876. out any negative, express or implied, Trustees of stock company may purupon the old common law, the party chase property necessary for the busihas his election either to sue upon the ness, and issue stock to the amount old common law or to proceed upon the of the value thereof. statute; the statutory remedy is only If the property has no definite value

it must be estimated. cumulative.” Sedgwick on Statutory Law, 93-101; 10 Barb., 260; 16 Sim., Motion by defendant for a new trial 271; 17 Sim., 167.

on exceptions to be heard in the first It is not intended in this case to instance at General Term. decide whether the court would be au

Plaintiff recovered a judgment for thorized to appoint a receiver upon the $7,000 against the Metal Chemical and happening of the contingencies anthor Manufacturing Company, and issued

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