AGREEMENT IN FRAUD OF
CREDITORS.

ENGLISH HIGH COURT OF JUSTICE.
MON PLEAS DIVISION.

Blacklock v. Dobie et al.

fifty pounds to plaintiff by the trustees" as a consideration for giving up the esCOM- tate. The declaration is bad, and the judgment must be arrested. Rule absolute.

Decided April 26, 1876. An agreement whereby, in consideration of an assignment by a debtor of all his estate to two of his creditors as trustees for the benefit of all the creditors, they agree, upon realization of the estate, to pay the debtor £50, made without the consent of the other creditors, is illegal as a fraud on their rights.

When a party uses a large portion of goods sold to him, after an opportu nity to examine them, he must be deemed to have accepted them, and to have waived any implied warranty. statement made by a party a year be fore the sale that he was receiving xx pipe iron," which was tough and soft, is not a warranty that all the iron of that brand which he might thereafter sell was of that character. When a party requests certain specified questions, for which there is no valid ground, to be submitted to the jury, it is to be assumed that he intends to waive the submission of other questions.

Action for breach of an agreement. The plaintiff entered into an agreement with defendants, two of his creditors, whereby he agreed to execute to A them, as trustees for his creditors, an assignment of all his estate and effects upon trust for the equal benefit of all his creditors, and to make to them. a full disclosure of all his estate and ef. fects, and the defendants agreed that upon realization of his said estate and effects, they would return and pay to plaintiff the sum of fitty pounds.

The plaintiff performed his part of the agreement, but defendants failed to pay the fifty pounds, whereupon defendant brought this action.

At the trial a verdict was given for plaintiff.

This action was brought upon a promissory note given by defendants to plaintiff, for a quantity of iron. It appeared that defendants, who were manufacturers of agricultural implements, applied to plaintiff, a dealer in iron, for ten tons of xx pipe iron," and the latter procured the same for them, and re

A rule was granted to arrest the judgment on the ground that the agreement set out in the declaration was il-ceived as pay the note in suit. Delegal, immoral, and contrary to the policy of the bankrupt law.

су

fendants, without testing the iron, mixed five tens of it with other iron, and used it in making castings, which, on account of this iron, were found to be Both parties supposed that

Held, That the agreement was a fraud on the creditors under the bank rupt laws. It appears on the face of worthless. 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 requested certain questions, not including this, to be submitted to the jury. The court refused, and directed a ver dict for plaintiff.

J. B. Adams, for applts.

J. R. Ward, for respt.

Held, That in the absence of fraud, plaintiff was only bound by his contract, which was to deliver "xx pipe iron"; that an implied warranty that the iron was merchantable could not be affirmed u less the contract was executory; that defendants, by using a large portion of the iron, after an opportunity to examine and ascertain whether it was merchantable, must be deemed to have accepted it, and to have waived any implied warranty.

In an action for an allege i conversion of goods, where the defence is a sale of said goods, and defendants rely upon a letter of plaintiff in relation thereto, containing the words:

66

By amounts received on account, $32,372.63," evidence tending to show that this sum was an indebtedness of plaintiff to defendants in other transactions, which he was willing to apply in payment for the goods, is material and admissible, as it would destroy the effect of the acknowledgment in the letter as an admission of a consummated sale, and the receipt of payments on account.

This action was brought to recover for the alleged conversion of a quantity of wine belonging to plaintiff, who was an importer of wines. It appear ed that a portion of the wine was stored with defendants, who kept a bonded warehouse, for safe keeping, a part in August, 1866, and a part in November,

Also held, That it must be assumed that when a party requests that certain specified questions be submitted to the jury, for which there is no valid ground, 1868, upon the representation that they that he intends to waive the submission of other questions, and that therefore the submission of the question as to whether the iron delivered was that con

tracted for was waived.

Also held, That a statement made a year before the sale by plaintiff, that he was receiving "xx pipe iron," which was tough and soft, would not enure as a warranty that all the iron of that brand he might thereafter sell was of that quality.

would probably purchase it. In Feb-
ruary, 1870, plaintiff sent defendants
bills of the two lots, dated as of the
time when the wines were 'elivered,
for the purpose of bringing them to a
determination whether they would pur
chase or not.
These bills were not
agreed to by defendants. In Novem
ber, 1870, defendants failed, before
having agreed upon the price and
terms of sale, and having in the mean-
time sold the wine. Defendants intro-

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

affirmed.

Opinion by Church, Ch. J.

EVIDENCE.

N. Y. COURT OF APPEALS.

tiff, which contained these words:

66

By amounts received on account, $32,272.68." Plaintiff offered to explain this credit, and testified that it alluded to note transactions between him and defendants, and offered evidence as to what those transactions

Richard, applt., v. Wellington et al., were, and of the facts upon which the

respts.

Decided June 6, 1876.

credit was based; in substance offering to show that this sum was an indebted

ness of plaintiff to defendants upon eighth street, in the city of New York.

other transactions which he was willing
to apply in payment for the wines.
This evidence was excluded.

C. L. Lyon, for applt.
Wm. A. Butler, for respt.

Held, error; that the evidence was material and was improperly excluded, as it would have destroyed the effect of the credit acknowledged in the letter as an admission of a consummated sale, and the receipt of payments, on account. Judgment of General Term, affirming judgment of nonsuit, affirmed. Opinion by Rapallo, J.

PRACTICE. EXCEPTIONS.

The contract was executed on the 25th day of October, 1869, and by its terms, it was to be fully and finally performed, on the 25th day of November following, at noon on that day, at the office of Pinkney & Spins, counsellor, &c. The defendant did not appear at that time and place, but the plaintiff did, and was ready and willing to convey the property. But it appeared that the gas fixtures had not then been put in the dwellings, and the contract required by its terms that they should be completely finished by the plaintiff and provided with gas fixtures. In this respect plaintiff was appareatly in de

N. Y. SUPREME COURT. GENERAL TERM, fault, and the failure was a material

FIRST DEPARTMENT.

Thomas F. Sharkey, respt., v. Jean G. Torrillon, applt.

Decided May 1, 1878.

one, because the expense of supplying the fixtures would be at least $600 for each one of the dwellings.

To excuse himself from the default, the plaintiff claimed that it had been An exception to the decision of a judge agreed between himself and the defenddenying a motion for a new trial on the minutes, on the ground that the ant, after the contract was executed, verdict is against the weight of evi- that an abatement of either six or eight dence, instead of its being on the hundred dollars should be made, in the ground of insufficiency of evidence purchase price of each of the lots, for to support it, is valid as to form, though the ground of the motion does not come within the express terms used in §264 of the Code.

Appeal from judgment recovered on verdict, and from order denying motion made upon the minutes of the court for a new trial.

The motion made for a new trial up on the minutes was placed upon the ground that the verdict of the jury was against the weight of evidence.

The action as it was finally tried, was was finally tried, was for damages for the breach of a con tract, by which the defendant covenanted to receive the conveyance, and pay the purchase price, of seven houses and lots, on the southerly side of Seventy

which the defendant should supply the gas fixtures himself. By his own evidence alone it appeared that a paper to

that effect was written for and subscri

bed by the plaintiff. He testified that it was done in Judge Alker's office, and

that he was the counsel for the defendant, who was also present at the time assenting to the change. When the instrument was subscribed, he testified that it was left with, and retained by Judge Alker. He did not in his evidence testify to any delivery, or acceptance of it, by the defendant, but simply that it was taken and retained by Judge Aiker. The defendant denied the existence of any such understanding, or agreement, and it was not pretended

and directing a new trial on payme: t by the de'e dant within twenty days after notice of the decision, of the costs of the trial already had, and ten dollars costs of opposing the motion; the costs

that he executed it, and the evidence of Judge Alker was positive that he had no such paper, and was not authorized to do any such thing as the plaintiff stated he had done, concerning the gas fixtures. There was no evidence given of the appeal to abide the event of the

to show that he was in fact authorized

to receive any agreement, for the de

action.

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.

TRICT OF TENNESSEE.

Ileld, That without some evidence U. S. CIRCUIT COURT-WESTERN DISupon the subject from which it could be implied that Judge Alker intended to assent to the acceptance of the writing for defendant, no delivery of it would

Wright v. The Merchants' National Bank.

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 authority from the defendant to do plication by a judgment creditor, subject, possibly, to his being superthat, and none was shown by the plainseded 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 modify 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 further, 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, 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 creditor is entitled to the aid of a court of equity.

the jurisdiction of the courts. The N. Y. SUPREME COURT. GENERAL TERM.