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by the judgment interest at the same date was direc- April 26, 1887. Crook v. Rindskopf. Opinion by ted to be paid on the amount found due from the date | Ruger, C. J. of the decision. Upon appeal this was held to be

BANKS — EXCHANGE - ACCOUNTS – CERTIFIED wrong, and that after judgment the mortgage was

DRAFTS. - By a custom among banks in the city of merged therein, and thereafter plaintiff was entitled

Rochester, commercial paper held by either of such to interest, not by virtue of the mortgage, but of the

banks, payable at any of the others, instead of being judgment, and that the interest should have been at

paid when presented at maturity, was “ certified” and the lawful rate, i. e., six per cent. To the same effect

returned to the bank presenting it as an item of was Salter v. Railroad Co., 86 N. Y. 401. In Prouty v.

credit in its exchauge account with the certifying Lake Shore & M. S. Ry. Co., 95 N. Y. 667, the judg

bank, and not as a negotiable instrument. On the ment before the court was by its terms payable with

nineteenth December, 1882, the City Bank received interest. In ()'Brien v. Young, id. 428, that provis

a certified draft for $800 from the plaintiff bank, which ion was lacking, but each judgment was recovered

according to the custom, the City Bank was entitled when the statutory rate of interest was seven per cent,

to have credited in its exchange settlement with plainand as to each it was held that the amount of interest

tiff on the following morning. The same day the City to be collected on execution must be governed by

Bank transferrea said draft of $800 to the defendant, statute, and that the rate changed when the general

in settlement of its exchange account with the latter. law reduced that rate to six per cent. Laws 1879, cb.

On the morning of the 20th there was a balance due, 538. The fact that one judgment specifically provided

after deducting the $800 draft, in favor of plaintiff for the payment of interest was not supposed to create

against the City Bank, which was then insolvent. In any distinction in the application of the law regulating

settling the exchange account between plaintiff and that question. The law of the State made every judg

defendant on the 20th, defendant claimed credit ment interest benring, and the obligation for its pay.

against the plaintiff for the amount of the $800 draft ment was not increased or varied by inserting a di

so received by it from the City Bank. It appeared rection to that effect in the record. The provision in

that defendant, at the time of receiving said draft, had the judgment of Utah, therefore in regard to interest,

notice that there was an exchange account between is of no more force in regulating the rate of interest

plaintiff and the City Bank, and tbat the latter was in upon suit brought in this Stalo than is the statute of

a failing condition. Held, that such receipt of the that Territory which justified its court in allowing it.

draft by defendant did not entitle it to the rights of As the increase is allowed, not as interest, but as

negotiable paper, and that under the circumstances, damages, its measures must be that of the State where

defendant could not set off such draft against plainthe action for its recovery is brought. The lex fori

tiff's exchange account. It is claimed on the part of goverus. This is the necessary result of the decisions

the plaintiff that the certification, being of an accepin this court already referred to, and the same doc

tance payable on time, was notice that the paper bad trine, as to similar cases, prevail in the courts of

matured, and been presented for payment at maturity, Massachusetts. Clark v. Child, 136 Mass. 314. May

and that as to all the parties to the bill the certifica10, 1887. Wells v. Davis. Opinion by Dauforth, J.

tion was a payment which discharged them, and the ASSIGNMENT FOR BENEFIT OF CREDITORS - FIRM paper had lost its negotiable character. On the other AND INDIVIDUAL DEBTS — FRAUD - EVIDENCE — IM. hand, it is claimed that although all the parties to the PLIED PROVISION.- (1) Even assuming an assignment bill were discharged, and as to them the paper had for the benefit of partnership and individual creditors ceased to be negotiable, yet as to the bank certifying gives the assignee authority to pay the individual it the certification was equivalent to a certificate of debts of each partner from combined individual assets, deposit payable to bearer on demand, and as such was the assignment is not void as being in fraud of the in negotiable as against the bank. We do not deem it dividual creditors of one of the partuers whose assets necessary to pass upon this question, because to entitle are greater than those of his copartuer, or whose in the holder of the certification to recover upon it withdividual liabilities are smaller in amount, in the out regard to the equities between the certifying bank absence of evidence to show that the assignment will and the party to whom the certification had been operato unjustly to a substantial extent in that re issued, it was necessary, not only that it should be spect, or that one of the partners is interested to a negotiable, but that the party claiming on the certifigreater extent, and therefore entitled to a larger share | cation should have received it in good faith, and withof any surplus of the firm assets, after paying the firm out notice of those equities. It seems to us that the creditors, than his copartner. (2) Where the only defendant in this case does not, under the facts found, effect of such a provision would be to diveri a sum of occupy that position. The defendant received the about $20 from the payment of debts amounting to certification with notice that it represented an item several thousands, the insignificance of the sum di merely in the exchange account between the City verted will furnish proof of absence of fraudulent in Bank of Rochester and the plaintiff, and that whether teut. (3) Firm creditors cannot plead that a provis any thing would be due or payable upon it would deion in an assignment for the benefit of partnership and pend upon the state of the exchange account between individual creditors, which gives the assignee author the two banks at the close of the day; that it was ity to pay the individual debts of each partner from certified for the purpose of being used in the settlethe combined individual assets, invalidates the assign ment of that account. This was notice that it was inment. (4) In application of the rule that the con tended as a mere voucher, and was not made for purstruction of an assignment for the benefit of creditors poses of negotiation; and it is expressly found that should lean toward its validity, the law will supply the the defendant took it with notice that in transferring oinission of a required provision that after payment it to them the City Bank was diverting it from of firm debts the residue should be divided into two the purpose for which it had been certified by the funds for the payment of individual creditors, and plaintiff. It matters not that the defendant did not will not impute to the instrument an authority to know the actual state of the exchange account between illegally apply combined individual assets to the pay the City Bank and the plaintiff. As a matter of fact, ment of individual debts, especially where a provision it appears from the findings, tbat at the time the detherein contained for the payment of any eventual fendant received the plaintiff's certification from the surplus of the executors or assigns of assignors india City Bank it had been more than paid by certifications cates an intention that such division should be made. which had been made by that bank, and were held by the plaintiff. But it is not necessary that the defend strained, and permitting him, in case of judgment, to ant should have had notice of that fact. It knew that take any other proceedings that the law and practice there was an exchange account between the plaintiff of the State court allowed. May 3, 1887. JcDonald and the City Bank, and that the certification was sub v. Davis. Opinion by Peckham, J. ject to the settlement of that account on the following CARRIERS — RAILROAD COMPANIES – DUTIES OF day, and also that in the ordinary course of business, PASSENGERS. - In an action by a passenger against a it was probable tbat the City Bauk held paper certified railroad company for assault by a brakemau who atby the plaintiff against which this certification was tempted to compel him to go inside of the car on applicable. By insisting on the City Bank settling which he was riding, refusal to charge the jury that with it on the 19th, contrary to the general custom, “although there were no seats, and people were standbecause it doubted the credit of the City Bank, and ing in the car, yet if there was room for plaintiff to taking from it this certification for that purpose, it stand inside, he was bound to go there,” is error, and was endeavoring to cast upon the plaintiff, in case it ground for a new trial. It is a matter of common had offsets, the risk which it was unwilling to incur, knowledge that it is considered unsafe for passengers and to subject the plaintiff to the chance of the City to ride on the platform of a running train. By so Bank providing other means, if required, of meeting doing they expose themselves and the other passenits liabilities to the plaintif. Whatever might have gers to unnecessary danger. The law exacts of carbeen the rights of an innocent party taking the certi- riers of passengers the highest degree of care for their fied draft in ignorance of the purpose for which the safety. The control of trains is necessarily placed in certification had been made, and of the right of the the hands of employees. It is impossible to foresee all plaintiff to apply it on a pending account, we cannot the exigencies which may demand prompt action on hold, in the face of the facts found, that the defend their part to avert danger or accident. The safety of ant, in taking this paper from a failing bank, under passengers on railroads requires that they should comthe circumstances became a holder in good faith. It ply with reasonable regulations, and acquiesce in purchased what it knew to be a mere voucher for an reasonable directions of persons to whom the manageitem in an account to be settled, and necessarily took | ment of the train is committed. It is obvious that the it subject to the result of the settlement of that ac crowding of passengers on the platform of a steam count. May 10, 1887. Flour City Nat. Bank of Roch- | railroad car may seriously embarrass the train-men in ester v. Traders' Nat. Bank of Rochester. Opiniou by the performance of their duties, and it is, we think, Rapallo, J.

the plain duty of a passenger standing on a platform

to go inside the car when requested 80 to do by a BANKRUPTCY – DISCHARGE – EFFECT UPON JUDG- person having charge of the train. The request to MENT — STAY.- (1) A discharge in bankruptcy under charge was material, as bearing upon the question of act of Congress of 1867 operates as a bar to a suit upon damages, assuming that the use of force by the brakea judgment founded on a debt existing at the time the man was not justified. Although the brakeman may bankruptcy proceedings were commenced, which debt have been mistaken as to his authority to enforce a was provable, and iu fact proved, in the bankruptcy compliance with the request made to the plaintiff, yet proceedings. The question of the effect of such dis. it was the duty of the plaintiff to comply, and his recbarge, under the later bankrupt act, upon a judgment fusal tends to mitigate and explain the conduct of the obtained under similar circumstances to the one in brakeman, and to show that the assault was not suit, has been decided, and we do not think it wise to wanton or malicious. The fact that there were no unopen the door for further discussion here. Monroe v. occupied seats in the car did not, we think, change Upton, 50 N. Y. 593-597. That case decided the ques. | the duty of the plaintiff to go inside. If he had any tion in the same way as Clark v. Rowling, supra. | well-founded complaint against the company for not Notbing said or decided in Revere Copper Co. v. providing adequate accommodations for passengers, Dimock, 90 N. Y. 33, affects this question. The judg. this did not, we think, release him from the duty of ment in that case was subsequent to the discbarge, 1 leaving the platform, and going inside the car, although and the court simply held that the determination, by | there was standing room only. The car was crowded the judgment, of the existence of a debt on that day, when the plaintiff entered it at Houston street. He was conclusive, and the prior discharge could not be placed himself immediately in a position where he was set up to dispute the absolute verity which the judg-compelled to submit to some inconvenience, and he ment imported. The cases of Clark v. Rowling and was not freed from the obligation to obey the reasonMonroe v. Upton, supra, were cited with approval, able directions of the train-men, made with a view to and distinguished from the one then under discussion. | the general convenience and safety, because there was The case went to the Supreme Court of the United no vacaut seat. May 10, 1887. Gruville v. Manhattan States, where the judgment was affirmed, the court | Ry. Co. Per Curium. holding, that as the discharge had been obtained be- COUNTIES – TREASURER -- FEES – AUDIT – INfore the entry of the judgment, application to the JUNCTION.- (1) Under Laws N. Y. 1810, cbap. 305, court should have been made for leave to plead it as a requiring all claims against a town to be audited by defense, and as that was not done, the judgment was the town board, and Laws N. Y. 1847, chap. 490, S 2, valid like any other judgment in an action where a providing that such claims must, for that purpose, be good defense existed, but bad not been pleaded, and presented in items and verified by the oath of a creditha: such defense could not thereafter be set up in an tor, the treasurer of Queens County cannot pay bimaction on the judgment. Dimock v. Revere Copper self out of the trust funds in his hands, the fees allowed Co., 117 U. S. 559-56). There is nothing in the case of | by Laws N. Y. 1877, chap. 268, and Laws N. Y. 1878, Hill v. Harding, 107 U. 8. 631, which impairs the chap. 226, for striking off lands to a town, at a sale for authority of the two cases in this court already referred taxes, without a previous audit of his claim. (2) Into, and we must still adhere to the law as therein de- junction will lie against the treasurer, at the suit of a cided, although the courts of some other States mar tax-payer of the town in which such lands are situated, have taken a different view of the question. (2) In a to prevent the appropriation of such fees, under Act suit upon such judgment, the discharge in bankruptcy | N. Y. 1881, chap. 531, authorizing a tax-payer to mainis no less a bar by reason of an order in the bank tain an action for the prevention and restraint of “any ruptcy court vacating a stay w biob defendant had pro- illegal official act' on the part of the officer of any cured in the original action, and permitting the plain-county, eto. May 10, 1887. Warrin p. Baldwin. Opintiff to proceed with his case the same as if never re- | iou by Finch, J.

EXECUTORS – ACCOUNTING – WHEN ENFORCED.- of their father in New York, certain real property in A testator, upon his death, bequeathed oue-tenth of Tennessee, which had belonged to him, was sold for his estate to his son. The on thereafter died, and the benefit of the wards. Held, that the Tennessee after the final account of the executor of the son's property having come to them and been realized estate had been accepted, an order for further ac through the establishment of their title to their counting was sought, on the ground that the executor father's property, under the terms of the attorney's of the son's estate, and one of the executors of the contract, by whicb for one-third of the proceeds he father's estate, were, as a firm, indebted to the father's was to recover as much as possible of the ward's propestate for a loan of its assets; and that the share oferty, he was entitled to one-third of the proceeds of the father's estate to which the son's estate was enti- this Tennessee property, although as to it no litigatled under the will was diminished by non-payment tion had been necessary. (5) Where it appeared that of the loan. Held, that as the father's estate was still the attorney had employed an associate to assist him in administration, the proper remedy was by action in the litigation, held, that the waiver by the latter of on behalf of the son's estate against the administration all claims against the wards on account of such emof the father's estate, to compel payment of the share ployment sbould not be imposed as a condition to the it was entitled to under the will; that the executor of attorney's recovery. May 13, 1887. In re Application the son's estate was primarily liable only for eventual of Hynes. Opinion by Peckham, J., Ruger, C. J., and damages caused by his delay in bringing such suit; Earl, J., dissenting. and that the order for further accounting should be

INSURANCE — BROKER-CANCELLATION OF POLICYdenied. May 3, 1887. In re Estate of Soutter. Opinion

NOTICE.— (1) A broker procured an insurance policy by Earl, J.

for his principal, which provided for its cancellation at EXECUTION AGAINST THE PERSON – DISCHARGE — any time upon the return to the insured of a pro rata FINAL PROCESS--APPEAL. — (1) Laws N. Y. 1886, chap. portion of the premium for the unexpired time of the 072, $ 5, provide that “no person shall be imprisoned policy. The premium was never paid uuless the fact within the prison walls of any jail for a longer period that credit was given to the broker for the premium than three months, under an execution, or any other could be considered payment. Held, that a notice of mandate, against the person, to enforce the recovery cancellation was effectual to destroy the polioy, though of a sum of money less than $500 in amount, or under there was no return of a pro rata portion of the prea commitment upon a fine for contempt of court, in mium. (2) Notice to a broker of the cancellation of a mon-payment of alimony, * * * where the amount policy of insurance which he had procured is notice to 80 to be paid is less that $500; and where the amount the insured, where the broker had been the agent of in either of said cases is $500 or over, such imprison the insured for two years previous, with a good deal ment shall not continue for a longer period than six of discretion in procuring insurance; where the policy months;" also, “no person shall be imprisoned within was carried upon his credit, and remained in his pogthe jail liberties of any jail for a longer period than session until canceled; and where for more than three six months upon any execution, or other mandate, months after the cancellation of the policy, and the against the person." Held, tbat this statute applies destruction of the property insured by fire, the prinonly to arrest and imprisonment upon final process, cipal seemed to recognize in all his acts that the notice and does not authorize the discharge, at the end of six of cancellation to the broker was binding upon him. months, of a defendant who has been arrested and May 10, 1887. Stone v. Franklin In8. Co. of Boston. imprisoned within jail limits, upon mesne process, for Opinion by Earl, J., Ruger, C. J., disseuting. concealing a part of the chattels, in an action for the

JUDGMENT - LIEN – DECEDENT'S ESTATE - EXECUrecovery of personal property. (2) An order of court,

TORS-POWER TO EMPLOY COUNSEL.-- During three in such case, discharging defendant from custody at

years after a debtor's death in New York, under Code, the end of six months, is appealable, as it deprives

$ 2749 et seq., bis creditors have a lien upon the real plaintiffs of a remedy given by statute. May 10, 1887.

estate left by him, and it cannot be aliened by his Levy v. Salomon. Opinion by Danforth, J.

heirs or devisees, so as to defeat their claims, but after GUARDIAN — RECOVERY OF REAL PROPERTY - EM the expiration of the three years, the debts cease to PLOYMENT OF ATTORNEY — COMPENSATION - ASSIS be a lien or charge on the real estate, but may be enTANT. — (1) Under section 5, p.718, 1 Rev. Stat., N. Y., forced against the heirs and devisees provided by statthe mother, upon death of the father, becomes the ute; and land aliened after that period is not subject general guardian of the minor children, with the to the payment of a judgment obtained against the rights, powers, and duties of a guardian in socage, and representative of the deceased, especially where it is as such has power to make a contract of employment not shown tbat there was po personal estate out of with an attorney for the recovery of her ward's real which such judgment could be paid. An executor property. (2) Uuder such circumstances, where the may bind himself personally, but has po power to biud mother of infant children employed counsel to recover the estate by an agreemeut with an attorney that he real property of the latter of the value of $141,660, for I shall have one-half of the whole amount recovered by a contingent fee of one-third, and it appeared that the bim, in a suit to set aside transfers and conveyances questions involved in the litigation were of great im

were of great im- of property made by the deceased before his death, portance and difficulty, and there was abundance of and to recover certain claims and demands, and to testimony by eminent attorneys that the agreement | create a lien on the estate therefor, or to assigu the was in all respects fair, reasonable, and proper, the claims to him. April 26, 1887. Platt v. Platt. Opinfinding of a referee supporting the agreement will not iou by Earl, J. be disturbed. (3) Where in pursuance of such agreement for fees, the attorney brought an action of eject JUDGMENT BY CONFESSION – AMENDMENT — DISment to recover the ward's property, and when the case CRETION OF COURT. - A motion by plaintiff to amend was ready for trial, another attorney, not employed the statement of a confession of judgment is addressed by the original attorney, appeared on behalf of the to the discretion of the Supreme Court, and the Court wards, and took part in the trial and subsequent of Appeals will not interefere with such discretion by appeals, held, that the compensation paid to the latter inserting conditions other than those imposed by the could not be deducted from the stipulated fee of the Supreme Court for plaintiff's acceptance before grantoriginal attorney. (4) After the determination of ing the order. April 26, 1887. Symson v. Selheimer. such actions establishing the wards' title to the lands | Per Curium.

JURISDICTION – NEW YORK SUPERIOR COURT -- will pass under a sale upon a joint execution against all EVIDENCE-INFERENCE OF WITNESS. - (1) The city of | the partuers issued upon a judgment recovered for a New York was sued, in the Superior Court thereof, | joint debt. A mere general creditor of a firm, having for the amount of an award of property condemned by no execution or attachment, bas no lien whatever the park commissioners, credited to “unkuown upon the personal assets of the firm. But when a firm owners," by a claimant of such property. After inter becomes iusolvent, and thus it becomes necessary to pleader by another claimant, the city paid the award adıninister its affairs in insolvency or in a court of into court, and the case was dismissed as to it. Held, equity, then the rule is well settled that firm property that section 993, ch. 410, Laws 1882, N. Y., providing must be devoted to firm debts, and individual property that in such a case it shall be lawful for the city to pay to the payment of the individual debts of the memthe award into the Supreme Court, to be disposed of bers of the firm. Il one member of a firm conveys to by it, is simply permissive to the city, and no ground a person, not a member of the firm, all his interest in for another party's objection to the jurisdiction of the the firm property, the purchaser takes no part of the Superior Court. Tiduer v. Mayor, 57 N. Y. 344; Spears corpus of the firm property, but only such interest as v. Mayor, 87 id. 359. (2) Where the owner of a town. remains after the equities between the partners have sito contracted with the committee of an association been adjusted and the firm debts have been paid and formed to acquire such town-site, to make deeds to satisfied. So too it was decided by the case above such persons as the committee should namo, evidence cited that if all the meinbers of a firm should severally as to whether all original grantees of such owiier got convey to different persons each his interest in the firm their deeds because they were members of such property, the persons so purchasing would not take association, is inadmissible, as against a subsequent | any of the corpus of the firm property, but only the grautee, to prove that his grantor had notice of the interest of each partner after the firm debts were paid terms of the contract; such evidence being merely a and the equities between the partuers adjusted. It is judgment or inference as to matters depending on the also settled that it would be a fraud upon firm credi. force of a written contract. May 13, 1887. Pollock v. tors for a member of a firm to take firm property and Morris. Opiniou by Finch, J.

apply it upon bis individual debts, or for the firm to MARRIAGE - ANTENUPTIAL CONTRACT - CONSTRUC

take firin property and apply it upon the individual TION - CONTINGENT PROVISION. – J. R., livingin New

debts of any member of the firm. Ransoni v. Van York, executed a trust deed to H. R., reciting that J.

Deventer, 41 Barb. 307: Wilson v. Robertson, 21 N. R. had entered into an autenuptial contract with P.

Y. 587. But one of two partners may transfer all of W., whereby it was agreed that J. R., on his marriage,

bis interest in the partnership property to his coshould settle and convey certaiu land to H, R., to the

partner, and the purchasing partner will be vested use, benefit, and behoof of P. W., in the following

with the absolute title to the corpus of all the partnermauner: (1) In the event of the death of J. R.,

ship property, as if it had always belonged to him.

Stanton v. Westover, 101 N. Y. 205. And all the memthe said P. W. shall have the use of the south half of the property during her natural life, and

bers of a firm may sell the partnership property, even after ber decease it sball revert to the heirs of the

if wholly insolvent, to a purcbaser in good faith, and said J. R. (2) Tbe use of the other half of said prem

thus convey, free from the claim of firm creditors, a ises during the minority of H. R., Jr., and M. R.,

good title to the firm property. Instead of selling for childreu of J. R. by a former marriage; and when they

cash, they may transfer firm property to pay a firm come of age, tbat they sball have the north half of the

debt. And they may transfer the firm property to property conveyed to them; and in the event of the

pay a joint debt for which they are jointly liable outside decease of P. W. without issue during the life-time of

1 of the business of the firm, and the joint creditor will said J. R., all the property shall be trausferred back

obtain a good title to the firm property. Therefore, to J. R. (3) The said J. R. agrees to adopt C. W., son

while firm property will not pass uuder successive sales of P. W., and, in the event of baving no issue by P.

upon executions issued against the individual partW., that C. W. shall be joint and co-heir with H. R.,

ners, we can see no reason to doubt that such propJr., and M. R. The marriage was consummated, and

erty will pas under a sale upon a joint execution P. W. died thereafter. Subsequently J. R. executed a

against all the partners, issued upon a judgınent remortgage on the land. Held, that the effect of the deed

covered for any joint debt whatever. (2) It is only was to rest in P. W. (or P. R.,) in case she survived

through the equity which one member of a firm has in J. R., an estate for her life in the south half of the

the firm property, or against his copartners, tbat firm property, leaving the remainder in fee to J. R., and in

creditors can, on the principle of subrogation, euforce tbe same contingency to vest in her an estate during

their claims against the firm property; aud where the the minorities of H. R., Jr., and M. R., in the north half

equities of all the members of the firm have been wiped of the premises, with remainder in fee to H. R., Jr.,

out by a sale of the assets of the firm, under execution aud M. R., to vest in them on the death of J. R., in

against all the members of the firm, on a joint judgthe life-time of P. R., and to take effect in possession

ment for a debt, not of the firm, but on which the on their coming of age; that no estate was vested in

partners were all jointly liable as individuals, there H. R., as the deed was a mere conveyance to the use

is nothing to which the doctrine of subrogation can of the named beneficiaries, which uses would be execu

apply. And so in effect it was held in the cases of ted by the New York statute without any conveyance,

Menagh v. Whitwell and Stanton v. Westover, supra. and that those provisions were not to take effect except

In 3 Kent Com. 65, it is said that “creditors have no in the contingency of J. R. dying during the life-time

lien upon the partnership effects for their debts. Their of P. R.; and that she having died before J. R., the

equity is the equity of the partners operating to the deed on her death ceased to operate, and the whole

payment of the partnership debts. In Kirby v. Schoontitle remained in him, so that the mortgage executed

maker, 3 Barb. Ch. 46, it was said by the chanellor: by him was valid. April 26, 1887. Helck v. Rein

“ The copartners however have certain equitable heimer. Opinion by Rapallo, J.

rights between themselves, arising out of the copart

nership, by which either can compel tbe other to bave PARTNERSHIP – FIRM AND INDIVIDUAL CREDITORS all the effects of the firm applied in the first place to - EXECUTION -SUBROGATION — CODE CIV.'PRO., $ 1369. the payment of the debts due from them as copartners. - (1) Wbile property of an insolvent firm will not pass, And this, as is said in the books, gives the joint credias agaiust firm oreditors, under successive sales upon tors a quasi equitable lien upon the property of the exeoution issued against the individual partners, it firm, to be worked out through the medium of the equity of the copartners as between themselves, and referee could not collect fees for days appointed for a with their assent, or at least with the assent of one of hearing, but on which uo hearing was had, and when, them." In Case v. Beauregard, 99 U. S. 119, Mr. Jus in advance of the days appointed, the parties agreed tice Strong said: “No doubt the effects of a partner upon a postponement, and so notified the referee. (2) ship belong to it so long as it continues in existence, Au oral agreement that the word “hearing" should and not to the individuals who compose it. The right be deemed to include “appointments of hearings" of each partner extends only to a share of what may canuot be admitted to vary such stipulation, in the remain after payment of the debts of the firm and the face of section 3296 of the New York Code, which resettlement of its accuuuts. Growing out of this right, quires any change in the compensation of a referee, as or rather included in it, is the right to bave the part fixed by law, to be manifested in writing. May 13, nership property applied to the paymeut of the part

1887. Head v. Tuckerman. Per Curiam. wership debts in preference to those of any individual

REMOVAL OF CAUSE - REPLEVIN - BOND- CONpartner. This is an equity the partners have as be

SIDERATION.-- (1) A district court of the city of New tween themselves; and in certain circumstances it in.

York has no authority to order an action of claim and ures to the benefit of the creditors of the firm. The

delivery to be transferred from that court into the latter are said to have a privilege or preference, some

court of common pleas, as Laws N. Y. 1857, ch. 344, · times loosely denominated a lien, to bare the debts

$ 2, subd. 3, providing for such transfers, has reference due to them paid out of the assets of the firm in course

to actions calling for relief to be obtained by money of liquidation, to the exclusion of the creditors of its several members. The equity however is a derivative

judgments only. (2) A boud given to obtain the re

moval of a suit from the District Court of the city of one. It is not held or enforceable in their own right.

New York to the Court of Common Pleas, the transfer It is practically a subrogation to the equity of the in

of which is not authorized by law, is not made under dividual partner, to be made effective only through him. Hence if he is not in a condition to enforce it,

any statutory authority, and is void. (3) Where for the creditors of the firm cannot be. But so long as the

the purpose of obtaining the removal of an action from equity of the partner remains in him, so long as he re

the District Court of the city of New York to the ('ourt tains an interest in the firm assets as a partner, a court

of Common Pleas, a bond is executed couditioned that of equity will allow the creditors of the firm to avail

the obligors will answer any judgment upon the rethemselves of his equity, and enforce through it the

moval of such action, such bond is, at common law, application of those assets primarily to payment of

void for want of consideration, if the latter court fails the debts due them, whenever the property comes

to obtain jurisdiction by reason that the action is such wwder its administration." In Fitzpatrick v. Flauna

as the District Court bas not authority to order the regan, 106 U. 8. 648, Mr. Justice Matthews said: “The

moval of. April 26, 1887. Miltnacht v. Kellerman. legal right of a partnership creditor to subject the

Opinion by Ruger, C. J. partnership property to the payment of his debts con

SALE-FRAUDULENT MISREPRESENTATIONS — STOCK sists simply in the right to reduce his claim to judg

— RESCISSION.- A party who has been induced to buy ment, and to sell the goods of his debtors on execu

and pay for stock of a corporation by representations tion. His right to appropriate the partnership prop

of the seller which are untruthful and incorrect may, erty specifically to the payment of his debts, in equity,

upon a discorery of the facts, rescind the contract, in preference to the creditors of an individual partner,

and recover back the purchase-money. The finding is derived through the other partners, wboso original

of the referee, in this case, that plaintiff did not in right it is to have partnership assets applied to the

fact rescind his contract for the purchase of stock by payment of partnership obligations. And this equity

tendering back, without conditions, the stock received, of the creditor subsists as long as that of the partner

but on the contrary, used that stock, and its transfer through which it is derived remains; that is so long

to defendant, as a new consideration for a contract by as the partner himself retains an interest in the firm

which he obtained from defendant a bond of indemassets as a partner, a court of equity will allow the

nity, with tbe protection of a surety added, against creditors of the firm to avail themselves of his equity,

tbe liabilities to which he had become exposed by his and enforce through it the application of those assets

unection with the corporation as an officer thereof, primarily to payment of the debts due them, when

held sustained by the evidence, and dismissal of his ever the property comes under its administration.”

action for recovery of money paid for purchase of Therefore after the sale of the joint property upon a said stock affirmed. April 19, 1887. Bridge v. Penni. joint judgment, although the judgment was not re

man. Opinion by Finch, J. covered upon a debt against a separate firm of Tooker & Irwin, there were no rights, legal or equitable, left

SPECIFIC PERFORMANCE – OPENING DECREE to either member of the firm in the property, and

DETERIORATION OF LAND.-In a suit to enforce specific therefore no equity in the firm property to be worked

performance of a contract for the sale of land, before out under them by any of the firın creditors. (3) Code

an iuterlocutory judginent will be opened for the purN. Y., $ 1369, which provides that the sheriff shall

pose of letting defendants claim interest on the pursatisfy an execution against property first “out of the chase-money, they must consent to allow the plaintiff personal property of the judgment debtor," does not

to prove, as a set-off, the damages he claims by reason require the sheriff to satisfy a joint execution against

of deteriorations caused by defendants' mismanagemembers of a firm out of the separate property in the

ment and neglect of the land. April 26, 1887. Bostassets of the firm of the individual partners. Under

wick v. Beach. Opinion by Rapallo, J. such an execution be may sell the right, title and in

SUBROGATION – MORTGAGE-RELEASE.— Plaintiff's terest of all the partners, or any one of them, in the

assignor discharged certain prior mortgago liens on firm property, and where he sells the interest of all the

defendant's land, receiving in return, a mortgage from partners, such a sale carries the whole. Maroh 8, 1887.

defendant, which in the foreclosure proceedings was Saunders v. Reilly. Opinion by Earl, J.

adjudged void for usury. The mortgagee thereupon, REFEREE -- FEE – STIPULATION – ORAL AGREE assigned his rights to plaintiff, who sought to be sub MENT. — (1) A matter in controversy was submitted to rogated to the liens discharged by his assignor. Hele a referee, by a written stipulation which declared that tbat the claim was invalid, because based upon rights the fees of the referee should be $20 per day “ for every | acquired under the void mortgage. May 10, 188-7. hearing." Held, that under such stipulation, the Perkins v. Hall. Opinion by Rapallo, J.

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