Twombly, applt., v. Cassidy et al., equity required that he should be impl'd with Lott, respt.

of General Term, affirming an order Quain's appeal, 22 Penn. St., 510, of Special Term denying the peti- distinguished.

Opinion by Rapallo, J. All concur, except Folger, Ch. J., not voting.

tion of one L. that the receiver ap- Order of General Term, affirming pointed for defendant should pay order of Special Term denying the rent due upon certain prem- motion, reversed, and motion ises leased by L. to the defendant. granted. It appeared that the receiver had in his hands a fund ample to pay all debts of the defendant; that he had paid all the admitted debts, and had deposited a sum sufficient to meet disputed claims, in which he had included all the rent that had accrued

APPEAL.

N. Y. COURT OF APPEALS.
The Benedict & Burnham Mfg.

and would accrue on the petitioner's Co. v. Thayer.
lease up to the end of the term. It
also appeared that after the pay-

ment of all claims there would be a
large surplus to distribute among
the stockholders. The receiver is
directed in the judgment in the
action to close up the affairs of the
corporation, and distribute the as-
sets among the remaining stock-
holders and creditors.

The People ex rel. Thayer v. Bowe, sheriff.

Decided October 5, 1880.

On appeal in these cases no undertaking was given, and no return filed. Held, That no appeal was pending.

See S. C., 10 W. Dig., 393.

This was a motion to dismiss the appeals in the above entitled actions, on the ground that the undertaking required by $1326 of the Code of Civil Procedure had not been given by the appellant, nor any deposit made, and that the appeal had not been perfected or prosecuted.

No return has been filed in either of the above cases, and no steps

Lewis L. Delafield, for applt. A. J. Vanderpoel, for respt. Held, That if L. has shown himself to be a creditor of the corporation for the rent claimed, that is sufficient to entitle him to payment, without regard to any liability the receiver may have assumed in regard to the lease. His rights are as Beach & Brown, for motion. great as those of any other creditor, Stearns & Curtis, opposed. and he is entitled to be paid in the Held, That no appeal is pending; regular course of distribution. The that as no undertaking has been dissolution of the corporation did given the appeal is ineffectual for not terminate the lease. It could any purpose. Code, § 1326; 76 N. not be canceled without the consent Y., 106.

of L. R. S., art. 3, Tit. 4, chap. 8, part 3. The lease was an open and subsisting engagement on the part of the corporation.

Martin v. Black, 9 Paige, 644, and|

taken in this court.

Motion denied, without costs. Per curiam opinion. All concur, except Folger, Ch. J., and Rapallo, J., dissenting.

FALSE REPRESENTATIONS. had had dealings with them; that

N. Y. COURT OF APPEALS.

as far as they could judge the Company had made money; that they said

Babcock et al., applts. v. Libbey, they had done better than at any

respt.

former period; that they had taken considerable orders ahead for their spring production, and anticipated a good season for their fabrics; that the Company had nothing to conceal

Decided Sept. 28, 1880. Plaintiffs wrote to defendant's firm, stating that they understood the firm was selling the goods of a corporation, and had a lien, &c., and inquiring as to the credit of the corporation. The firm replied that as far as they in regard to their position, and would could judge the company had made money; undoubtedly fairly arswer all the that they could form no opinion of its man- plaintiffs' inquiries. It appeared agement; that they had taken orders ahead, that A. T. Stewart & Co. held a and anticipated a good season, and that the chattel mortgage upon the personal company would undoubtedly fairly answer all inquiries. The firm held a chattel mort property of the Woolen Company, gage given by the company, but did not and it was proved that defendant mention it in their reply. Held, That this L. admitted that he intentionally omission would not warrant a finding of a omitted mentioning it in his letter, though he did not admit it was with any wrong intent.

fraudulent intent; that as to the affirmative

statements of the reply, the burden was on plaintiffs to show that at the date of the letter they were false. Affirming S. C., 8 W. Dig., 182.

Henry Smith, for applts. Francis Kernan, for respt. This action was brought to recover Held, That defendants had a damages of defendant and his part- right from plaintiffs' letter to supners, who constituted the firm of pose that they knew of their relations A. T. Stewart & Co., for alleged with the Woolen Company, and did false and fraudulent representations not desire information in regard to and suppressions to induce credit. the liens they had upon the ComIt appeared that plaintiffs on Nov. pany's property, and which appeared 6, 1868, wrote a letter to A. T. upon the record, but an opinion, in Stewart, stating that the Utica view of all existing facts, as to its Woolen Co. wished to purchase a pecuniary ability, and defendant's quantity of wool of them, and that omission to give information respectthey understood Mr. Stewart's firm was selling their goods, and had a lien, &c., and making inquiries of the ability of said company to pay. A. T. Stewart & Co. replied to the letter, stating that the Utica W. Co. consigned all its goods to them, that they had a ready sale for them, sometimes selling largely ahead of their product or order; that they could form no opinion of their If the statements in defendant's management from the period they letter are not shown to have been

ing them would not warrant a finding by the jury of a fraudulent intent; that the letter could hardly be construed as a recommendation or assertion of the solvency or ability of the Company. As to the affirmative statements of the letter, the burden of proof was on plaintiffs to show that at the date of the letter they were false.

untrue, it is immaterial to the issue of this action what became of the property, or whether defendants falsely recommended the Company to other parties.

Judgment of General Term, affirming judgment on nonsuit, affirmed.

Fol

as a counterclaim in an action upon evidence of debt.

Appeal from judgment for plaintiff on verdict by direction.

One W. applied to plaintiff to extend his line of discount, and procured and delivered to plaintiff in presence of defendant a written instrument executed by defendant and upon which this suit is brought,

Opinion by Rapallo, J.; Andrews, Miller and Earl, JJ., concur. ger, Ch. J., and Danforth, J., dis- whereby, in consideration of loans sent.

and advances by plaintiff to W., defendant promised and guaranteed to plaintiff all pledger of property,

GUARANTY. CONSTRUCTION. warehouse receipts and other vouUSURY. COUNTERCLAIM.

N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT.

The Farmers and Mechanics' National Bank of Buffalo, respt., v. Gerhardt Lang, applt.

Decided October, 1880.

A written instrument executed and delivered to a bank whereby defendant promises and

guarantees to said bank all pledges of prop-
erty, warehouse receipts and other vouchers
that may be given by W. as collateral secur-
ity, and promises that the property so set
over shall not be misapplied, and that if
any default or misappropriation thereof
shall be made, defendant will make good
any deficiency, and fully satisfy the stipula-
tion in receipts, does not render defendant
liable only to make good a deficiency caused
by diversion, but is also a guaranty of the
existence of the property proposed to be
pledged.

Defendant is not released from liability under
such guaranty by renewal of the note.
Where an answer sets up usury in that notes
were discounted at a rate of from ten to

chers which might from time to time be given by W. as collateral security to plaintiff for advances, discounts and loans, and promised also that property so trausferred and set over to plaintiff, should not be misapplied or diverted to any other purpose while such loans or advances remained unpaid, and that if any default or misappropriation of property so pledged should be made, he, the defendant, would make good to plaintiff any deficiency and fully satisfy stipulations contained in any receipts or vouchers there

for.

Between the time of delivery of said guaranty and his failure in business, W. procured notes to be discounted by plaintiff, and attached to each one a warehouse receipt, as collateral security, and by a separate writing certified that the property therein described had been paid for and was unincumbered, and that he hereby transferred the title thereof to plaintiff. At the time of the trial, plaintiff held a large amount can be enforced only by action brought espe- of W.'s notes unpaid-and proved cially for that purpose, and cannot be set up demand on W., and his refusal to

fourteen per cent. per annum, evidence that the rate of discount was sixteen per cent was properly excluded.

A claim for a penalty under sec. 5198, U. S.

Rev. Stats., for payment of excessive interest

deliver the property described in merely to collateral pledges of propthe receipts, and subsequent demand erty, without regard to the time of on defendant to make good the de- payment or term of credit of the inficiency. debtedness which the pledges were intended to secure.

Plaintiff had renewed W.'s note from time to time, the receipt attached to the original note being attached to the renewals.

The answer sets up usury in that the notes were discounted at a rate of from ten to fourteen per cent., and testimony offered to show that the notes were discounted by plaintiff at rate of sixteen per cent. was excluded as incompetent and immaterial under the pleadings.

Held also, That the evidence as to usury was properly excluded. There is authority for saying that the variance between the allegation in the answer and the testimony offered, was fatal. 31 Barb., 100; S. C. Affd., 2 Abb. Ct. App. Dec., 291.

Held also, That the penalty prescribed by the U. S. Revised Statutes in cases where illegal interest has been paid cannot be set up as

the instrument or evidence of debt; the only redress the party making such payment has is by a penal action brought especially for that purpose. 8 N. Y. W. Dig., 378.

Defendant claimed as a set-off a counterclaim in an action upon the penalty of double the interest paid, given by sec. 5198, U. S. Rev. Stats., which prescribes that a party by whom excessive interest has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt,

Judgment affirmed.

Opinion by Smith, J.; Talcott, P.

twice the amount of interest thus J., and Hardin, J., concurring.
paid, &c. Testimony in support of
this claim was excluded.

W. H. Gurney, for applt.
Spencer Clinton, for respt.

Held, That under the above instrument defendant was not only liable to make good any deficiency caused by a misapplication or diversion by W. of property pledged to plaintiff, but he also guaranteed the pledges and receipts themselves; that is to say, he undertook that W. actually had in his possession the property which he professed to pledge.

Held also, That the renewal of the notes did not release defendant.

CO-TENANTS.

SETTLEMENT

UNDER MISTAKE.

N. Y. SUPREME COURT. GENERAL
TERM. FOURTH DEPT.

George Brisbane, respt., v. Albert
Brisbane, applt.

Decided October, 1880. Where, in an action for money had and received, a settlement between the parties has been proved, it cannot be avoided by testimony that one party was ignorant of certain material facts at the time. The settlement is binding until impeached and opened for fraud or mutual mistake on pleadings framed for that purpose.

He was not holden for payment of When a party to such settlement had previous

the notes or of the debt evidenced by them; his guaranty related

opportunity to acquaint himself with the facts, quare, whether his neglect to inform himself would not be a bar to an action to