by the judgment interest at the same date was directed to be paid on the amount found due from the date of the decision. Upon appeal this was held to be wrong, and that after judgment the mortgage was merged therein, and thereafter plaintiff was entitled to interest, not by virtue of the mortgage, but of the judgment, and that the interest should have been at the lawful rate, i. e., six per cent. To the same effect was Salter v. Railroad Co., 86 N. Y. 401. In Prouty v. Lake Shore & M. S. Ry. Co., 95 N. Y. 667, the judgment before the court was by its terms payable with interest. In O'Brien v. Young, id. 428, that provision was lacking, but each judgment was recovered when the statutory rate of interest was seven per cent, and as to each it was held that the amount of interest to be collected on execution must be governed by statute, and that the rate changed when the general law reduced that rate to six per cent. Laws 1879, ch. 538. The fact that one judgment specifically provided for the payment of interest was not supposed to create any distinction in the application of the law regulating that question. The law of the State made every judgment interest bearing, and the obligation for its payment was not increased or varied by inserting a direction to that effect in the record. The provision in the judgment of Utah, therefore in regard to interest, is of no more force in regulating the rate of interest upon suit brought in this State than is the statute of that Territory which justified its court in allowing it. As the increase is allowed, not as interest, but as damages, its measures must be that of the State where the action for its recovery is brought. The lex fori governs. This is the necessary result of the decisions in this court already referred to, and the same doctrine, as to similar cases, prevail in the courts of Massachusetts. Clark v. Child, 136 Mass. 344. May 10, 1887. Wells v. Davis. Opinion by Danforth, J. ASSIGNMENT FOR BENEFIT OF CREDITORS AND INDIVIDUAL DEBTS - FRAUD-EVIDENCE-IM

FIRM

PLIED PROVISION.- - (1) Even assuming an assignment for the benefit of partnership and individual creditors gives the assignee authority to pay the individual debts of each partner from combined individual assets, the assignment is not void as being in fraud of the individual creditors of one of the partners whose assets are greater than those of his copartner, or whose individual liabilities are smaller in amount, in the absence of evidence to show that the assignment will operate unjustly to a substantial extent in that respect, or that one of the partners is interested to a greater extent, and therefore entitled to a larger share of any surplus of the firm assets, after paying the firm creditors, than his copartner. (2) Where the only effect of such a provision would be to divert a sum of about $20 from the payment of debts amounting to several thousands, the insignificance of the sum diverted will furnish proof of absence of fraudulent intent. (3) Firm creditors cannot plead that a provision in an assignment for the benefit of partnership and individual creditors, which gives the assignee authority to pay the individual debts of each partner from the combined individual assets, invalidates the assignment. (4) In application of the rule that the construction of an assignment for the benefit of creditors should lean toward its validity, the law will supply the omission of a required provision that after payment of firm debts the residue should be divided into two funds for the payment of individual creditors, and will not impute to the instrument an authority to illegally apply combined individual assets to the payment of individual debts, especially where a provision therein contained for the payment of any eventual surplus of the executors or assigns of assignors indicates an intention that such division should be made.

April 26, 1887. Crook v. Rindskopf. Opinion by Ruger, C. J.

EXCHANGE

ACCOUNTS

CERTIFIED

BANKS DRAFTS. By a custom among banks in the city of Rochester, commercial paper held by either of such banks, payable at any of the others, instead of being paid when presented at maturity, was "certified" and returned to the bank presenting it as an item of credit in its exchange account with the certifying bank, and not as a negotiable instrument. On the nineteenth December, 1882, the City Bank received a certified draft for $800 from the plaintiff bank, which according to the custom, the City Bank was entitled to have credited in its exchange settlement with plaintiff on the following morning. The same day the City Bank transferred said draft of $800 to the defendant, in settlement of its exchange account with the latter. On the morning of the 20th there was a balance due, after deducting the $800 draft, in favor of plaintiff against the City Bank, which was then insolvent. In settling the exchange account between plaintiff and defendant on the 20th, defendant claimed credit against the plaintiff for the amount of the $800 draft so received by it from the City Bank. It appeared that defendant, at the time of receiving said draft, had notice that there was an exchange account between plaintiff and the City Bank, and that the latter was in a failing condition. Held, that such receipt of the draft by defendant did not entitle it to the rights of negotiable paper, and that under the circumstances, defendant could not set off such draft against plaintiff's exchange account. It is claimed on the part of the plaintiff that the certification, being of an acceptance payable on time, was notice that the paper had matured, and been presented for payment at maturity, and that as to all the parties to the bill the certification was a payment which discharged them, and the paper had lost its negotiable character. On the other hand, it is claimed that although all the parties to the bill were discharged, and as to them the paper had ceased to be negotiable, yet as to the bank certifying it the certification was equivalent to a certificate of deposit payable to bearer on demand, and as such was negotiable as against the bank. We do not deem it necessary to pass upon this question, because to entitle the holder of the certification to recover upon it without regard to the equities between the certifying bank and the party to whom the certification had been issued, it was necessary, not only that it should be negotiable, but that the party claiming on the certification should have received it in good faith, and without notice of those equities. It seems to us that the defendant in this case does not, under the facts found, occupy that position. The defendant received the certification with notice that it represented an item merely in the exchange account between the City Bank of Rochester and the plaintiff, and that whether any thing would be due or payable upon it would depend upon the state of the exchange account between the two banks at the close of the day; that it was certified for the purpose of being used in the settlement of that account. This was notice that it was intended as a mere voucher, and was not made for purposes of negotiation; and it is expressly found that the defendant took it with notice that in transferring it to them the City Bank was diverting it from the purpose for which it had been certified by the plaintiff. It matters not that the defendant did not know the actual state of the exchange account between the City Bank and the plaintiff. As a matter of fact, it appears from the findings, that at the time the defendant received the plaintiff's certification from the City Bank it had been more than paid by certifications which had been made by that bank, and were held by

the plaintiff. But it is not necessary that the defendant should have had notice of that fact. It knew that there was an exchange account between the plaintiff and the City Bank, and that the certification was subject to the settlement of that account on the following day, and also that in the ordinary course of business, it was probable that the City Bank held paper certified by the plaintiff against which this certification was applicable. By insisting on the City Bank settling with it on the 19th, contrary to the general custom, because it doubted the credit of the City Bank, and taking from it this certification for that purpose, it was endeavoring to cast upon the plaintiff, in case it had offsets, the risk which it was unwilling to incur, and to subject the plaintiff to the chance of the City Bank providing other means, if required, of meeting its liabilities to the plaintiff. Whatever might have been the rights of an innocent party taking the certified draft in ignorance of the purpose for which the certification had been made, and of the right of the plaintiff to apply it on a pending account, we cannot hold, in the face of the facts found, that the defendant, in taking this paper from a failing bank, under the circumstances became a holder in good faith. It purchased what it knew to be a mere voucher for an item in an account to be settled, and necessarily took it subject to the result of the settlement of that account. May 10, 1887. Flour City Nat. Bank of Rochester v. Traders' Nat. Bank of Rochester. Opinion by Rapallo, J.

BANKRUPTCY -DISCHARGE EFFECT UPON JUDGMENT — STAY.—(1) A discharge in bankruptcy under act of Congress of 1867 operates as a bar to a suit upon a judgment founded on a debt existing at the time the bankruptcy proceedings were commenced, which debt was provable, and in fact proved, in the bankruptcy proceedings. The question of the effect of such discharge, under the later bankrupt act, upon a judgment obtained under similar circumstances to the one in suit, has been decided, and we do not think it wise to open the door for further discussion here. Monroe v. Upton, 50 N. Y. 593-597. That case decided the question in the same way as Clark v. Rowling, supra. Nothing said or decided in Revere Copper Co. v. Dimock, 90 N. Y. 33, affects this question. The judgment in that case was subsequent to the discharge, and the court simply held that the determination, by the judgment, of the existence of a debt on that day, was conclusive, and the prior discharge could not be set up to dispute the absolute verity which the judgment imported. The cases of Clark v. Rowling and Monroe v. Upton, supra, were cited with approval, and distinguished from the one then under discussion. The case went to the Supreme Court of the United States, where the judgment was affirmed, the court holding, that as the discharge had been obtained before the entry of the judgment, application to the court should have been made for leave to plead it as a defense, and as that was not done, the judgment was valid like any other judgment in an action where a good defense existed, but had not been pleaded, and that such defense could not thereafter be set up in an action on the judgment. Dimock v. Revere Copper Co., 117 U. S. 559-565. There is nothing in the case of Hill v. Harding, 107 U. S. 631, which impairs the authority of the two cases in this court already referred to, and we must still adhere to the law as therein decided, although the courts of some other States may have taken a different view of the question. (2) In a suit upon such judgment, the discharge in bankruptcy is no less a bar by reason of an order in the bankruptcy court vacating a stay which defendant had procured in the original action, and permitting the plaintiff to proceed with his case the same as if never re

strained, and permitting him, in case of judgment, to take any other proceedings that the law and practice of the State court allowed. May 3, 1887. McDonald v. Davis. Opinion by Peckham, J.

DUTIES OF

CARRIERS RAILROAD COMPANIES PASSENGERS.- In an action by a passenger against a railroad company for assault by a brakeman who attempted to compel him to go inside of the car on which he was riding, refusal to charge the jury that 'although there were no seats, and people were standing in the car, yet if there was room for plaintiff to stand inside, he was bound to go there," is error, and ground for a new trial. It is a matter of common knowledge that it is considered unsafe for passengers to ride on the platform of a running train. By so doing they expose themselves and the other passengers to unnecessary danger. The law exacts of carriers of passengers the highest degree of care for their safety. The control of trains is necessarily placed in the hands of employees. It is impossible to foresee all the exigencies which may demand prompt action on their part to avert danger or accident. The safety of passengers on railroads requires that they should comply with reasonable regulations, and acquiesce in reasonable directions of persons to whom the management of the train is committed. It is obvious that the crowding of passengers on the platform of a steam railroad car may seriously embarrass the train-men in the performance of their duties, and it is, we think, the plain duty of a passenger standing on a platform to go inside the car when requested so to do by a person having charge of the train. The request to charge was material, as bearing upon the question of damages, assuming that the use of force by the brakeman was not justified. Although the brakeman may have been mistaken as to his authority to enforce a compliance with the request made to the plaintiff, yet it was the duty of the plaintiff to comply, and his refusal tends to mitigate and explain the conduct of the brakeman, and to show that the assault was not wanton or malicious. The fact that there were no unoccupied seats in the car did not, we think, change the duty of the plaintiff to go inside. If he had any well-founded complaint against the company for not providing adequate accommodations for passengers, this did not, we think, release him from the duty of leaving the platform, and going inside the car, although there was standing room only. The car was crowded when the plaintiff entered it at Houston street. He placed himself immediately in a position where he was compelled to submit to some inconvenience, and he was not freed from the obligation to obey the reasonable directions of the train-men, made with a view to the general convenience and safety, because there was no vacant seat. May 10, 1887. Graville v. Manhattan Ry. Co. Per Curiam. COUNTIES - TREASURER FEES JUNCTION. (1) Under Laws N. Y. 1840, chap. 305, requiring all claims against a town to be audited by the town board, and Laws N. Y. 1847. chap. 490, § 2. providing that such claims must, for that purpose, be presented in items and verified by the oath of a creditor, the treasurer of Queens county cannot pay himself out of the trust funds in his hands, the fees allowed by Laws N. Y. 1877, chap. 268, and Laws N. Y. 1878, chap. 226, for striking off lands to a town, at a sale for taxes, without a previous audit of his claim. (2) Injunction will lie against the treasurer, at the suit of a tax-payer of the town in which such lands are situated, to prevent the appropriation of such fees, under Act N. Y. 1881, chap. 531, authorizing a tax-payer to maintain an action for the prevention and restraint of “any illegal official act" on the part of the officer of any county, etc. May 10, 1887. Warrin v. Baldwin. Opinion by Finch, J.

AUDIT IN

A testator, upon his death, bequeathed one-tenth of his estate to his son. The son thereafter died, and after the final account of the executor of the son's estate had been accepted, an order for further accounting was sought, on the ground that the executor of the son's estate, and one of the executors of the father's estate, were, as a firm, indebted to the father's estate for a loan of its assets; and that the share of the father's estate to which the son's estate was entitled under the will was diminished by non-payment of the loan. Held, that as the father's estate was still in administration, the proper remedy was by action on behalf of the son's estate against the administration of the father's estate, to compel payment of the share it was entitled to under the will; that the executor of the son's estate was primarily liable only for eventual damages caused by his delay in bringing such suit; and that the order for further accounting should be denied. May 3, 1887. In re Estate of Soutter. Opinion by Earl, J.

*

EXECUTION AGAINST THE PERSON DISCHARGEFINAL PROCESS-APPEAL.- (1) Laws N. Y. 1886, chap. 672, § 5, provide that "no person shall be imprisoned within the prison walls of any jail for a longer period than three months, under an execution, or any other mandate, against the person, to enforce the recovery of a sum of money less than $500 in amount, or under a commitment upon a fine for contempt of court, in non-payment of alimony, * * where the amount so to be paid is less that $500; and where the amount in either of said cases is $500 or over, such imprisonment shall not continue for a louger period than six months;" also, “no person shall be imprisoned within the jail liberties of any jail for a longer period than six months upon any execution, or other mandate, against the person." Held, that this statute applies only to arrest and imprisonment upon final process, and does not authorize the discharge, at the end of six months, of a defendant who has been arrested and imprisoned within jail limits, upon mesne process, for concealing a part of the chattels, in an action for the recovery of personal property. (2) An order of court, in such case, discharging defendant from custody at the end of six months, is appealable, as it deprives plaintiffs of a remedy given by statute. May 10, 1887. Levy v. Salomon. Opinion by Danforth, J.

GUARDIAN RECOVERY OF REAL PROPERTY PLOYMENT OF ATTORNEY

- EMCOMPENSATION ASSISTANT.- (1) Under section 5, p. 718, 1 Rev. Stat., N. Y., the mother, upon death of the father, becomes the general guardian of the minor children, with the rights, powers, and duties of a guardian in socage, and as such has power to make a contract of employment with an attorney for the recovery of her ward's real property. (2) Under such circumstances, where the mother of infant children employed counsel to recover real property of the latter of the value of $141,660, for a contingent fee of one-third, and it appeared that the questions involved in the litigation were of great importance and difficulty, and there was abundance of testimony by eminent attorneys that the agreement was in all respects fair, reasonable, and proper, the finding of a referee supporting the agreement will not be disturbed. (3) Where in pursuance of such agreement for fees, the attorney brought an action of ejectment to recover the ward's property, and when the case was ready for trial, another attorney, not employed by the original attorney, appeared on behalf of the wards, and took part in the trial and subsequent appeals, held, that the compensation paid to the latter could not be deducted from the stipulated fee of the original attorney. (4) After the determination of such actions establishing the wards' title to the lands

of their father in New York, certain real property in Tennessee, which had belonged to him, was sold for the benefit of the wards. Held, that the Tennessee property having come to them and been realized through the establishment of their title to their father's property, under the terms of the attorney's contract, by which for one-third of the proceeds he was to recover as much as possible of the ward's property, he was entitled to one-third of the proceeds of this Tennessee property, although as to it no litigation had been necessary. (5) Where it appeared that the attorney had employed an associate to assist him in the litigation, held, that the waiver by the latter of all claims against the wards on account of such employment should not be imposed as a condition to the attorney's recovery. May 13, 1887. In re Application of Hynes. Opinion by Peckham, J., Ruger, C. J., and Earl, J., dissenting.

INSURANCE

BROKER-CANCELLATION OF POLICY

NOTICE. (1) A broker procured an insurance policy for his principal, which provided for its cancellation at any time upon the return to the insured of a pro rata portion of the premium for the unexpired time of the policy. The premium was never paid unless the fact that credit was given to the broker for the premium could be considered payment. Held, that a notice of cancellation was effectual to destroy the policy, though there was no return of a pro rata portion of the premium. (2) Notice to a broker of the cancellation of a policy of insurance which he had procured is notice to the insured, where the broker had been the agent of the insured for two years previous, with a good deal of discretion in procuring insurance; where the policy was carried upon his credit, and remained in his possession until canceled; and where for more than three months after the cancellation of the policy, and the destruction of the property insured by fire, the principal seemed to recognize in all his acts that the notice of cancellation to the broker was binding upon him. May 10, 1887. Stone v. Franklin Ins. Co. of Boston. Opinion by Earl, J., Ruger, C. J., disseuting.

EXECU

JUDGMENT - LIEN - DECEDENT'S ESTATE TORS-POWER TO EMPLOY COUNSEL. During three years after a debtor's death in New York, under Code, § 2749 et seq., his creditors have a lien upon the real estate left by him, and it cannot be aliened by his heirs or devisees, so as to defeat their claims, but after the expiration of the three years, the debts cease to be a lien or charge on the real estate, but may be enforced against the heirs and devisees provided by statute; and land aliened after that period is not subject to the payment of a judgment obtained against the representative of the deceased, especially where it is not shown that there was no personal estate out of which such judgment could be paid. An executor may bind himself personally, but has no power to bind the estate by an agreement with an attorney that he shall have one-half of the whole amount recovered by him, in a suit to set aside transfers and conveyances of property made by the deceased before his death, and to recover certain claims and demands, and to create a lien on the estate therefor, or to assign the claims to him. April 26, 1887. Platt v. Platt. Opinion by Earl, J.

JURISDICTION

-

- NEW YORK SUPERIOR Court EVIDENCE-INFERENCE OF WITNESS. (1) The city of New York was sued, in the Superior Court thereof, for the amount of an award of property condemned by the park commissioners, credited to "unknown owners," by a claimant of such property. After interpleader by another claimant, the city paid the award into court, and the case was dismissed as to it. Held, that section 993, ch. 410, Laws 1882, N. Y., providing that in such a case it shall be lawful for the city to pay the award into the Supreme Court, to be disposed of by it, is simply permissive to the city, and no ground for another party's objection to the jurisdiction of the Superior Court. Tiduer v. Mayor, 57 N. Y. 344; Spears v. Mayor, 87 id. 359. (2) Where the owner of a townsite contracted with the committee of an association formed to acquire such town-site, to make deeds to such persons as the committee should name, evidence as to whether all original grantees of such owner got their deeds because they were members of such association, is inadmissible, as against a subsequent grantee, to prove that his grantor had notice of the terms of the contract; such evidence being merely a judgment or inference as to matters depending on the force of a written contract. May 13, 1887. Pollock v. Morris. Opinion by Finch, J.

CONSTRUC

son

MARRIAGE - ANTENUPTIAL CONTRACT TION - CONTINGENT PROVISION.— J. R., living in New York, executed a trust deed to H. R., reciting that J. R. had entered into an antenuptial contract with P. W., whereby it was agreed that J. R., on his marriage, should settle and convey certain land to H. R., to the use, benefit, and behoof of P. W., in the following mauner: (1) In the event of the death of J. R., the said P. W. shall have the use of the south half of the property during her natural life, and after her decease it shall revert to the heirs of the said J. R. (2) The use of the other half of said premises during the minority of H. R., Jr., and M. R., children of J. R. by a former marriage; and when they come of age, that they shall have the north half of the property conveyed to them; and in the event of the decease of P. W. without issue during the life-time of said J. R., all the property shall be transferred back to J. R. (3) The said J. R. agrees to adopt C. W., of P. W., and, in the event of having no issue by P. W., that C. W. shall be joint and co-heir with H. R., Jr., and M. R. The marriage was consummated, and P. W. died thereafter. Subsequently J. R. executed a mortgage on the land. Held, that the effect of the deed was to vest in P. W. (or P. R.,) in case she survived J. R., an estate for her life in the south half of the property, leaving the remainder in fee to J. R., and in the same contingency to vest in her an estate during the minorities of H. R., Jr., and M. R., in the north half of the premises, with remainder in fee to H. R., Jr., and M. R., to vest in them on the death of J. R., in the life-time of P. R., and to take effect in possession on their coming of age; that no estate was vested in H. R., as the deed was a mere conveyance to the use of the named beneficiaries, which uses would be executed by the New York statute without any conveyance, and that those provisions were not to take effect except in the contingency of J. R. dying during the life-time of P. R.; and that she having died before J. R., the deed on her death ceased to operate, and the whole title remained in him, so that the mortgage executed by him was valid. April 26, 1887. Helck v. Reinheimer. Opinion by Rapallo, J.

PARTNERSHIP FIRM AND INDIVIDUAL CREDITORS -EXECUTION —SUBROGATION — CODE CIV.IPRO., § 1369. — (1) While property of an insolvent firm will not pass, as against firm creditors, under successive sales upon execution issued against the individual partners, it

will pass under a sale upon a joint execution against all the partners issued upon a judgment recovered for a joint debt. A mere general creditor of a firm, having no execution or attachment, has no lien whatever upon the personal assets of the firm. But when a firm becomes insolvent, and thus it becomes necessary to administer its affairs in insolvency or in a court of equity, then the rule is well settled that firm property must be devoted to firm debts, and individual property to the payment of the individual debts of the members of the firm. If one member of a firm conveys to a person, not a member of the firm, all his interest in the firm property, the purchaser takes no part of the corpus of the firm property, but only such interest as remains after the equities between the partners have been adjusted and the firm debts have been paid and satisfied. So too it was decided by the case above cited that if all the members of a firm should severally convey to different persons each his interest in the firm property, the persons so purchasing would not take any of the corpus of the firm property, but only the interest of each partner after the firm debts were paid and the equities between the partners adjusted. It is also settled that it would be a fraud upon firm credi tors for a member of a firm to take firm property and apply it upon his individual debts, or for the firm to take firm property and apply it upon the individual debts of any member of the firm. Ransom v. Van Deventer, 41 Barb. 307; Wilson v. Robertson, 21 N. Y. 587. But one of two partners may transfer all of bis interest in the partnership property to his copartner, and the purchasing partner will be vested with the absolute title to the corpus of all the partnership property, as if it had always belonged to him. Stanton v. Westover, 101 N. Y. 265. And all the members of a firm may sell the partnership property, even if wholly insolvent, to a purchaser in good faith, and thus convey, free from the claim of firm creditors, a good title to the firm property. Instead of selling for cash, they may transfer firm property to pay a firm debt. And they may transfer the firm property to pay a joint debt for which they are jointly liable outside of the business of the firm, and the joint creditor will obtain a good title to the firm property. Therefore, while firm property will not pass under successive sales upon executions issued against the individual partners, we can see no reason to doubt that such property will pas under a sale upon a joint execution against all the partners, issued upon a judgment recovered for any joint debt whatever. (2) It is only through the equity which one member of a firm has in the firm property, or against his copartners, that firm creditors can, on the principle of subrogation, euforce their claims against the firm property; and where the equities of all the members of the firm have been wiped out by a sale of the assets of the firm, under execution against all the members of the firm, on a joint judgment for a debt, not of the firm, but on which the partners were all jointly liable as individuals, there is nothing to which the doctrine of subrogation can apply. And so in effect it was held in the cases of Menagh v. Whitwell and Stanton v. Westover, supra. In 3 Kent Com. 65, it is said that "creditors have no lien upon the partnership effects for their debts. Their equity is the equity of the partners operating to the payment of the partnership debts. In Kirby v. Schoonmaker, 3 Barb. Ch. 46, it was said by the chanellor:

The copartners however have certain equitable rights between themselves, arising out of the copartnership, by which either can compel the other to have all the effects of the firm applied in the first place to the payment of the debts due from them as copartners. And this, as is said in the books, gives the joint creditors a quasi equitable lien upon the property of the firm, to be worked out through the medium of the

equity of the copartners as between themselves, and with their assent, or at least with the assent of one of them." In Case v. Beauregard, 99 U. S. 119, Mr. Justice Strong said: "No doubt the effects of a partnership belong to it so long as it continues in existence, and not to the individuals who compose it. The right of each partner extends only to a share of what may remain after payment of the debts of the firm and the settlement of its accounts. Growing out of this right, or rather included in it, is the right to have the partnership property applied to the payment of the partnership debts in preference to those of any individual partner. This is an equity the partners have as between themselves; and in certain circumstances it inures to the benefit of the creditors of the firm. The latter are said to have a privilege or preference, sometimes loosely denominated a lien, to have the debts due to them paid out of the assets of the firm in course of liquidation, to the exclusion of the creditors of its several members. The equity however is a derivative

опе.

"The

It is not held or enforceable in their own right. It is practically a subrogation to the equity of the individual partner, to be made effective only through him. Hence if he is not in a condition to enforce it, the creditors of the firm cannot be. But so long as the equity of the partner remains in him, so long as he retains an interest in the firm assets as a partner, a court of equity will allow the creditors of the firm to avail themselves of his equity, and enforce through it the application of those assets primarily to payment of the debts due them, whenever the property comes under its administration." In Fitzpatrick v. Flannagan, 106 U. S. 648, Mr. Justice Matthews said: legal right of a partnership creditor to subject the partnership property to the payment of his debts consists simply in the right to reduce his claim to judgment, and to sell the goods of his debtors on execution. His right to appropriate the partnership property specifically to the payment of his debts, in equity, in preference to the creditors of an individual partner, is derived through the other partners, whose original right it is to have partnership assets applied to the payment of partnership obligations. And this equity of the creditor subsists as long as that of the partner through which it is derived remains; that is so long as the partner himself retains an interest in the firm assets as a partner, a court of equity will allow the creditors of the firm to avail themselves of his equity, and enforce through it the application of those assets primarily to payment of the debts due them, whenever the property comes under its administration." Therefore after the sale of the joint property upon a joint judgment, although the judgment was not recovered upon a debt against a separate firm of Tooker & Irwin, there were no rights, legal or equitable, left to either member of the firm in the property, and therefore no equity in the firm property to be worked out under them by any of the firm creditors. (3) Code N. Y., § 1369, which provides that the sheriff shall satisfy an execution against property first "out of the personal property of the judgment debtor," does not require the sheriff to satisfy a joint execution against members of a firm out of the separate property in the assets of the firm of the individual partners. Under such an execution he may sell the right, title and interest of all the partners, or any one of them, in the firm property, and where he sells the interest of all the partners, such a sale carries the whole. March 8, 1887. Saunders v. Reilly. Opinion by Earl, J.

BOND-CON

referee could not collect fees for days appointed for a hearing, but on which no hearing was had, and when, in advance of the days appointed, the parties agreed upon a postponement, and so notified the referee. (2) An oral agreement that the word "hearing" should be deemed to include "appointments of hearings cannot be admitted to vary such stipulation, in the face of section 3296 of the New York Code, which requires any change in the compensation of a referee, as fixed by law, to be manifested in writing. May 13, 1887. Mead v. Tuckerman. Per Curiam. REMOVAL OF CAUSE — REPLEVIN SIDERATION.- (1) A district court of the city of New York has no authority to order an action of claim and delivery to be transferred from that court into the court of common pleas, as Laws N. Y. 1857, ch. 344, § 2, subd. 3, providing for such transfers, has reference to actions calling for relief to be obtained by money judgments only. (2) A bond given to obtain the removal of a suit from the District Court of the city of New York to the Court of Common Pleas, the transfer of which is not authorized by law, is not made under any statutory authority, and is void. (3) Where for the purpose of obtaining the removal of an action from the District Court of the city of New York to the Court of Common Pleas, a bond is executed conditioned that the obligors will answer any judgment upon the removal of such action, such bond is, at common law, void for want of consideration, if the latter court fails to obtain jurisdiction by reason that the action is such as the District Court has not authority to order the removal of. April 26, 1887. Mittnacht v. Kellerman. Opinion by Ruger, C. J.

SALE-FRAUDULENT MISREPRESENTATIONS- STOCK RESCISSION. A party who has been induced to buy and pay for stock of a corporation by representations of the seller which are untruthful and incorrect may, upon a discovery of the facts, rescind the contract, and recover back the purchase-money. The finding of the referee, in this case, that plaintiff did not in fact rescind his contract for the purchase of stock by tendering back, without conditions, the stock received, but on the contrary, used that stock, and its transfer to defendant, as a new consideration for a contract by which he obtained from defendant a bond of indemnity, with the protection of a surety added, against the liabilities to which he had become exposed by his Connection with the corporation as an officer thereof, held sustained by the evidence, and dismissal of his action for recovery of money paid for purchase of said stock affirmed. April 19, 1887. Bridge v. Penniman. Opinion by Finch, J.