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Second. Testator devised and bequeathed while unreversed, must be accepted as setas follows: "I do give and devise unto all tling that question so far as the present litimy brothers and sisters and their representa gation is concerned, and any expression of tives, after the decease of my wife, the house opinion upon it, by this court in this proceedand lot left in trust to her, and also the bank ing would be merely obiter. stock left in trust to her, to be equally divided, share and share alike.” The sisters, three in number, all died in testator's lifetime, leav

(74 N. J. L. 633) ing issue, and the question is: who takes un

STATE V. FEISS. der the words "or their representatives”? I (Court of Errors and Appeals of New Jersey. have so recently considered this question in

March 4, 1907.) Howell v. Gifford, 64 N. J. Eq. lou, 53 Atl. 1. RECEIVING STOLEN Goods—VALUE-Evi

DENCE. 1074, that I shall not attempt to repeat here

Upon the trial of an indictment for rewhat I said there. Among the cases cited in ceiving stolen goods, the owner of the goods the opinion is King v. Cleaveland, 4 De G. & may testify as to their value. J. 477, which seems to be on all fours with [Ed. Note.-For cases in point, see Cent. Dig.

vo the case at bar. I think the word "represen

42, Receiving Stolen Goods, s 15.] tatives” is substitutionary, and means, hav

2. SAME-INSTRUCTIONS.

A charge of the court in such case that ing reference to the context, “next of kin un

the jury has a right to infer from the circuinder the statute of distributions."

stances surrounding the purchase of the goods as to whether or not the defendant must have known that the goods were stolen is not open

to the construction that the court thereby in(70 N. J. Eq. 797)

structed the jury that the only two elements of CITY OF ELIZABETH v. CENTRAL R. the crime charged were "that the goods were CO. et al.

stolen" and that “the defendant must know

that they were stolen," although in that con(Court of Errors and Appeals of New Jersey.

nection the court omitted to instruct the jury March 25, 1907.)

that they must also find that the defendant JUDGMENT-ISSUES-RES JUDICATA.

bought or received the goods; the court havA judgment by the Supreme Court that un ing expressly directed the jury in another part der the riparian acts the grant by the state to of the charge that, if the defendant was not a railroad company operated to terminate the there that day (i. e., at the time and place existence of a street over lands included in the where and when the goods were alleged to have grant below high-water mark, while unreversed been received by him) he could not have bought was conclusive of such question as between the the goods and it was their duty to acquit him. parties.

State v. Goldman, 47 Atl, 641, 65 N. J. Law, [Ed. Note.-For cases in point, see Cent, Dig.

394 distinguished. vol. 30, Judgment, $8 1248-1252.)

(Syllabus by the Court.) Appeal from Court of Chancery.

Error to Supreme Court. Information by the Attorney General, on Emil Feiss was convicted of receiving stolrelation of the city of Elizabeth, and a bill en goods, and brings error. Affirmed. in equity by such city against the Central Gustave A. Hensicker, for plaintiff in error. Railroad Company of New Jersey and others,

Eugene Emley, Prosecutor of Pleas, for the to test the validity of a grant of tide lands. State. From a decree dismissing the bill and information (59 Atl. 348), complainants appeal.

GARRETSON, J. The plaintiff in error Affirmed.

was convicted in the Passaic quarter sessions Frank Bergen, for appellants. R V. Lin upon an indictment charging him with having dabury, for respondents.

received certain goods and chattels, to wit,

one Giamond ring of the value of $25, and PER CURIAM. Our examination of this one diamond stick pin of the value of $5, in case leads us to the conclusion that the de all of the value of $30, knowing said goods cree appealed from should be affirmed. We and chattels to have been stolen, and the concur in the opinion of the learned Vice Supreme Court affirmed the conviction. The Chancellor before whom the cause was heard entire record has been returned under the in the court below, except so far as it inti certificate of the judge and causes of remates a dissent from the view expressed by versal have been served pursuant to section the Supreme Court in the case of Elizabeth 137, p. 1147 of the criminal procedure act. v. Central R. R. Co., 53 N. J. Law, 491, 22 Atl. The first cause for reversal specified is per47, that under the riparian acts the grant | mitting the alleged thief to answer the of the state to the Central Railroad Company question, "What kind of a store is it?” The (which was the subject-matter of the contro witness, having testified to taking the artiversy in that case as well as in present one) cles specified from the owner and selling operated to terminate the existence of Eliza them to the defendant at a store at Main beth avenue, over the lands included in the street near Broadway, was asked, "What grant, below high-water mark, as is pointed kind of a store is it?" to which answer was out by the learned Vice Chancellor in his given, "It looks like a hockshop.” We are opinion, so far as the issues involved in the not able to discover, nor have we been pointpresent information and bill are concerned. ed by the defendant's counsel to, any particThe determination of the S'ipreme Court, ular in which this question was illegal.

The next cause for reversal is because the goods, or, if you conclude that he did buy court permitted the owner of the goods stol the goods and did not know that they were en to testify to their value. It is the uni stolen, then it is your duty to acquit him.” versal practice to permit the owner of goods It is also urged that there is error in that stolen to testify as to their value upon the part of the charge in which the judge said trial of the thief, and we know of no reason to the jury: "In other words, were the cirwhy the owner should not be permitted to cumstances surrounding this transaction, contestify as to the value upon the trial of the ceding the state's case, in the first place, to receiver. Besides, if this evidence is inad be true, were the circumstances surrounding missible, it could not be said to be injurious tbis transaction and the purchase of these because it is criminal to receive or buy, know two articles of jewelry such that the defending it to have been stolen, "any valuable thing ant must have known that they were stolen?” whatsoever,” without any reference as to If this is an instruction, then the jury was how much it is worth,

told that the defendant must have known The fourth cause for reversal relates to from the circumstances surrounding this the refusal of the court to direct a verdict transaction and the purchase of these two of acquittal at the close of the state's case. articles of jewelry that they were stolen. An examination of the evidence returned He must have had knowledge, not suspicions. with this writ satisfies us that it was suffi State v. Goldman, 65 N. J. Law, 394, 47 Atl. cient to justify and require its submission 641, holds that "the proof must be that the to the jury. State v. Jaggers, 71 N. J. Law, defendant had knowledge, not that he had 281, 58 Atl. 1014, 108 Am. St. Rep. 746. suspicions."

The fifth, sixth, and seventh causes of re The defendant refers to the Goldman Case versal are directed to the charge. The de in support of the alleged error in the charge fendant specifies as erroneous instruction the as above. But the instruction in the Goldfollowing: “As has already been intimated, man Case was entirely different from the upon the motion made by the counsel of the instruction in this case. In that case the defendant to dismiss this indictment, the court charged "that which a man ought to jury had a right to infer from the circum have suspected in the position of the defendstances surrounding the transaction as to i ant he should have suspected, and he must be whether or not the defendant must have regarded as having suspected in order to put known that the goods were stolen. Now, you himself upon his guard and upon inquiry. have heard her story. Perhaps you will be The proof in any case is inferential.” This able to recall all the circumstances besides quotation from the Goldman Case can have those that I mentioned from which you can no application to the part of the charge exmake the inference that the defendant, be cepted to in this case. ing an intelligent business man and accustom Another specification of cause for reversal ed to deal in this kind of business, would be is the following from the charge: “Now, able to conclude from appearances, from gentlemen of the jury, I may fail to recall what took place, whether or not he was justic exactly and accurately just what was said fied in the purchase of those articles, and while the testimony was being given; but, whether or not he should make an investi as I recall the testimony, this young woman gation where the circumstances were sus was asked by the counsel for the defendant picious.” This part of the charge dealt on whether, when she was selling these things ly with the circumstances surrounding the Was not she asked by him, or did she not purchase of the goods, and instructed the say to him, that her husband had pneujury as to what bearing they might have monia, and that she was poor? It may be upon the knowledge of the defendant as to that I do not recollect that testimony acwhether or not the goods were stolen. The curately, but it looks very much as if I did counsel of plaintiff in error, in pointing out recollect it accurately when I say that questhe defects in the charge, says that the court tion was asked of her at the time she was started out with the erroneous proposition selling these goods, for what was the reason that the only two essential elements of the of asking those questions, or that kind of a crime charged were “that the goods were question, at any other time?

Didn't you stolen,” and that “the defendant must know say, perhaps, as a reason for wanting to disthat they were stolen, and omitted to instruct pose of these articles, that you wanted the the jury that they must also find that the de money, that your husband was sick with fendant bought or received the goods.” This pneumonia, and that you were poor? Well, is a misapprehension of the effect of the the asking of a question does not necessarily charge as a whole. At its close the court bind the defendant, gentlemen of the jury, instructed the jury as follows: “If you con but in dealing with that part of the case you clude that these goods were stolen and were have a right to consider that element in it." bought by the defendant, knowing them to In the course of the trial the witness who have been stolen, or that the circumstances was the alleged thief, and who testified that were such that he must have inferred that she had sold the goods to the defendant, they were stolen, why, he is guilty of the testified cross-examination as follows: crime charged. However, if he was not "Q. Did you tell him [the defendant] any. there that day, he could not have bought the thing about your husband? A. I told him

on

It was my engagement ring, and said he was Proceeding by Austin L. Haggerty, as ad. sick with pneumonia. Q. Did you tell him ministrator, against John H. Badkin, to comthat you wanted to dispose of these things pel defendant to pay the amount of a decree because you needed the money? A. Yes, sir. on pain of being punished for contempt. Because your husband was sick ? A. Yes, Granted. sir. Q. Did you tell him you were suffering

James Steen and William D. Tyndall, for for want of food? A. No, sir. Q. Did you

complainant. A. C. Hart, for defendant. tell him your husband was suffering from pneumonia, and you needed the money? A. Yes, sir." The defendant by his testimony

PITNEY, V. C. This is a proceeding to claimed that he did not buy the articles from

compel the defendant to pay to the complainthis witness, and could not have done so

ant the amount of a decree recovered by the at the time she alleges, because he was then

latter against the former in this cause on in New York. It was entirely proper for the

the 5th day of January, 1905, for upwards court to state this testimony to the jury, and

of $500, besides costs. to direct their attention to the inferences that

The motion is resisted on two grounds. might be drawn from it. One very obvious in

The first and principal ground is a discharge ference would bear upon the truth of the de

in bankruptcy granted a year later by the fendant's alibi. The question would natural

District Court of the United States for the ly arise: How could this conversation be

District of New Jersey, which purports to tween the witness and the defendant take

discharge defendant from all debts and claims place when the defendant was at the time

which existed on the 10th day of May, 1905, in New York? We find no error in this part

“excepting such debts as are by law excepted of the charge.

from the operation of a discharge in bankAnother specification of cause for reversal

ruptcy.” The complainant replies to this dewas in the part of the charge of the court

fense that the debt for which the decree was referring to the evidence of an alibi. Ex granted is within that exception, and he re ception was taken to this at the time of the

lies on the fourth subdivision of section 17 trial, but the court, upon its attention being of the bankruptcy act (Act July 1, 1898, c. called to it, withdrew that part of the charge

541, 30 Stat. 551 [U. S. Comp. St. 1901, p. from the consideration of the jury, and ev.

3428]), where are enumerated the several expressly directed them to disregard it.

ceptions, the fourth of which is : "Such debts The judgment brought up by this writ of as were created by his fraud, embezzlement, error must therefore be affirmed.

misappropriation or defalcation while acting as an officer or in any fiduciary capacity."

The complainant contends that the debt here(72 N. J. Eq. 473)

in arose by a misappropriation to his own HAGGERTY V. BADKIN.

use of money which had been confided to hiin

by complainant's intestate in a fiduciary ca(Court of Chancery of New Jersey. March 8, 1907.)

pacity. To sustain this contention, resort is

had to the original bill in the cause, the an1. BANKRUPTCY-DISCHARGE-TRUST Funds

swer thereto and the proofs, and facts apPARTNERSHIP. Pursuant to the formation of a contem

pearing at the trial and the findings of the plated partnership between defendant and in court thereon. testate, the latter paid to defendant $500 for The bill charges that the intestate, in his the benefit of the firm. Almost immediately thereafter intestate died, and pending his sick

lifetime, about the 20th of May, 1902, being ness defendant deposited such funds in a bank in negotiations with the defendant in referin his own name, and after intestate's death

ence to a proposed partnership between them, converted the money to his personal use. Held,

deposited with the defendant the sum of $500 that intestate's death dissolved the partnership, after which defendant became a trustee of

as and for his share of the partnership capisuch fund for the benefit of intestate's estate, tal. The bill further shows that immediately holding the same in a fiduciary capacity within

after such deposit complainant's intestate Bankr. Acı July 1, 1898, § 17, subd. 4, c. 541, 30 Stat. 551 [Ù. S. Comp. St. 1901, p. 3428),

was taken violently ill and died of the illexempting from a discharge debts created by ness on May 26th, and alleges that the actual misappropriation while the bankrupt is acting formation of the partnership was interrupted in a fiduciary capacity.

by such illness, and was never consummated. [Ed. Note.-For cases in point, see Cent. Dig.

The answer of the defendant denies these al. vol. 6, Bankruptcy, 88 793-802.]

legations, and sets up that there were in fact 2. EQUITY – DECREE-ENFORCEMENT-ATTACHMENT AGAINST PERSON.

negotiations between the parties as to the Where a surviving partner wrongfully mis formation of such partnership, but that the appropriated funds which he held in trust for plan for such partnership did not include the estate of his deceased partner, the latter's administrator, in a proceeding in equity to com

the use of any capital; that the defendant pel the enforcement of a decree for the pay

was employed as a salesman for a furniture ment of the money, was entitled to process house, and complainant's intestate desired to against defendant's body, which would be ex

join him in the business of selling furniture; ecuted in the absence of proof that defendant was unable to obey the order.

and that, in order to carry out that plan, it [Ed. Note.--For cases in point, see Cent. Dig.

was necessary for defendant to abandon bis vol. 19, Equity, $ 1056.)

present business connection, which was valu

able, and that intestate paid him the $500 as sion of the deceased. He died on the 26th of a personal compensation to him for giving up May. Defendant called at once upon the his then present lucrative job. The cause uncle who had advanced the money, and the came on for hearing before me as Vice Chan uncle recited to him the terms of the contract, cellor, and I found the issue in favor of the as hereinbefore stated, and he admitted it to complainant, and, as a matter of fact, that be correct. He speedily used the $500 for the $500 was paid to the defendant as a con his personal use. The evidence satisfied me tribution to partnership assets and funds. | that the terms of the contract of partnership I bave since read over the stenographer's were substantially agreed upon, but that the minutes of the evidence and my oral reasons intestate desired to have them reduced to for the decree, and am entirely satisfied with writing. Under these circumstances, the questhe result above stated. It appeared at the tion is whether the debt is excepted from the hearing that the complainant's intestate at effect of the discharge in bankruptcy, and the date of the transaction, May, 1902, was that question depends on whether it was re24 years old and single, and resided with his ceived in the first place or afterwards demother in Hackensack, N. J., and worked as tained by the defendant in a "fiduciary caa clerk on a small salary for his uncle, a New pacity.” That it was so received or detained York business man. The defendant was a I think there can be no doubt, if we give to married man about 14 years older than in these words their ordinary meaning. testate, and lived with his wife in Hacken Money is received or detained by one from sack. He was a salesman on a salary of $30 another in a fiduciary capacity when, in the per week for a New York furniture house.

mind of the person handing the money to Neither of the parties had any capital, nor the other, as such mind is known to that othwere either engaged in any business of any er, it does not become the absolute money sort for themselves. The defendant kept no and property of that other, to do with as he bank account, but brought his weekly wage chooses as his own money, but is received by home to his wife every Saturday night, and him for a particular purpose in which a perhanded it to her after the fashion of an or

son or persons other than the person receivdinary mechanic. In this state of affairs, ing it is or are interested. If two persons about the 1st of May, 1902, the parties enter are in partnership, and one is acting as cashed into negotiations to enter into the business ier or financial manager and the other pays of selling furniture as partners, and it was money to his partner to be used in partnersupposed that they would need a little capi

ship business, the money so paid is received tal in the business, presumably to pay travel in a fiduciary capacity. The receiver holds ing expenses and the like, which under the

it in trust for the partnership and for the arrangement between defendant and bis em

benefit of the partners in proportion to their ployers were paid by his employers in addi

several interests, and neither partner has the tion to his weekly wage.

For the purpose right to appropriate one dollar of it to his inof supplying this capital, it was arranged dividual use without the consent, express or that complainant's intestate should contrib

implied, of the other party. Each partner, ute to the business $500 and the defendant for all the purposes within the scope of the contribute his knowledge and familiarity of partnership, becomes the agent of each other the business to stand as an equivalent for partner and of the partnership entity, and the contribution in cash by the intestate. when a present partnership is dissolved by Complainant's intestate borrowed that sum

death of one of the partners the survivor at from his uncle in a check dated May 17, 1902, once becomes a trustee for the representatives drawn by his uncle to his order. On the of the deceased. Now, it seems to me this evening of May 19th (as near as the date can sort of fiduciary capacity is clearly within be determined) deceased took the check to the language of the act. The words "fidu. the house of the defendant in Hackensack, ciary capacity" do not in my judgment refer and there indorsed it over specially to him to a technical trust such as forms the ordias his contribution to the capital. Either at nary basis of treatises on that subject. the moment of the Indorsement or immediate Mr. Hill, in his introduction to his work on ly after, deceased was taken violently ill with Trustees (page 1), defines a “trusteee" as, in malignant diphtheria. Defendant took the the widest meaning of the term, “a person in check to New York, and opened an account whom some estate, interest, or power in or in his own name in a bank, and deposited affecting property of any description is vestthe check to his own credit. The date of the ed for the benefit of another.” And he says entry in the book is May 20th. He called to that that definition also extends to bailees, see the deceased the same evening, and found factors, and agents whose duties in their fi. him very ill. They had some conversation on duciary character are recognized and enforced business matters, heard in part by the de at common law. And Mr. Willis, in his treaceased's mother, who heard the deceased say tise, published in Lord Eldon's time (page 1), to the defendant, “Let that remain for a few gives the same definition. To the same effect days." it appeared that no written contract is Mr. Perry in his book (section 1). The orighad as yet been entered into between them, inal bankrupt law of 1841 (Act Aug. 19, but typewritten sheets embodying a contract, 1841, c. 9, 5 Stat. 440) provided in its first secwith corrections, were found in the posses tion that "all persons whatsoever residing etc.

owing debts which shall not have been ciary capacity for the pledgee." I stop here created in consequence of a defalcation as a to say that the distinction between the New public officer or as executor, administrator, York case and the one in 2 How. (U. S.) 202, guardian or trustee, or while acting in any 11 L. Ed. 236, is one which runs through all other fiduciary capacity,” might apply to be the cases, and is noticed by the judges, namedischarged in bankruptcy. The fourth sec ly, that a factor who sells goods for a prin. tion provided that no person who, after the cipal naturally and in the ordinary course passage of this act, should apply trust funds of business mingles the proceeds of the sales to his own use, should be discharged. Under with his own money and the amount at once that legislation the Supreme Court of the becomes a simple debt, and that the principal United States, in Chapman v. Forsyth, 2 How. or consignor of the goods is presumed to have (U. S.) 202, 11 L. Ed. 236, held that a balance notice of the ordinary course of business. In due from a mercantile factor to his principal fact, it is a pure mercantile transaction, rearising out of the ordinary dealings between sulting in an implied contract, and the natufactor and principal is not a fiduciary debt in ral remedy is by action of assumpsit at comthe meaning of that act. Justice McLean, in mon law. In the case in New York and othdelivering the opinion of the court, held that ers I shall have occasion to cite there could the cases enumerated in the first section, be no such usual course of business, and it namely, defalcation by public officer, executor, was the duty of the debtor defendants, as administrator, guardian, and trustee, were soon as one of the collateral notes intrusted special trusts, the “other fiduciary capacity” to them for collection was paid, to transmit mentioned must mean the same class of the proceeds instanter to their creditor. trusts, and says "the act speaks of technical Act March 2, 1867, c. 176, 14 Stat. 533, vatrusts, and not those which the law implies ried in its language from that of 1841. It from the contract.” He then refers to the provided not in the first section, as in that fourth section of the act, which provided that act, but in the thirty-third section, that “no the discharging certificate, when duly granted, debt created by the fraud, or embezzlement shall in all courts of justice be deemed a of the bankrupt or his defalcation as a pubfull and complete discharge of all debts, con lic officer or while acting in any fiduciary tracts, and other engagements of said bank character" shall be discharged under the act. rupt as are provable under the act, and may The contrast between this section of the act be pleaded as a complete bar. And the court and the corresponding section of the prior further held that the creditor entitled to the act is manifest. By dropping out the word exception must appear and show in the bank "other" found in the first section of the old rupt court that he was entitled to the excep act the Legislature divorced the words "fidution, and that the court for that reason had ciary capacity” from the list of specific no jurisdiction as to his claim. Notwithstand trust positions enumerated in the older act. ing this decision, the Supreme Court of New Moreover, its position in the statute is signifiYork four years later in White v. Platt (1818) cant. And this was the view taken by many 5 Denio, 269, under the same act, held that a federal and state courts when that act first debt was not barred by an act of bankruptcy came under judicial consideration. Judge which arose under the following circum Blatchford, then district judge, so held in Ex stances: Defendants were indebted to plain- parte Seymour, 6 Int. Rev. Rec. 60, 1 Ben. tiff in a sum certain. They transferred to 348, Fed. Cas. No. 12,684, and his view was him certain promissory notes as collateral to approved by Justice Nelson of the Supreme secure the indebtedness. Before the maturity Court of the United States in Re Kimbal, 6 of these notes the plaintiff returned them to Blatchf. 292, Fed. Cas. No. 7,769, and by the defendants to collect them on plaintiff's many other judges. As late as 1882 Judge account as his agent. Defendants collected the Pardee followed these judges in Fulton v. notes, and did not account to plaintiff therefor. Hammond (C. C.) 11 Fed. 291. In that case The court held that they received them in such Hammond had received from the clerk and a fiduciary capacity that they were not dis master in the chancery court of Lincoln councharged by a discharge in bankruptcy. This ty, Tenn., a sealed bill made to him in his case has never been doubted, but was cited official capacity for a large sum of money for with approval by Judge Strong speaking for collection, signing therefor a receipt (containthe Supreme Court of the United States in ing a copy of the note) in these words: "I Clark v. Iselin, 21 Wall. 360, 368, 22 L. Ed. receive said note to collect without suit, if 568. Here a transaction in all respects sim practicable. If not I am to employ counsel ilar to that involved in White v. Platt is thus and collect by suit if necessary.” In a suit characterized in the headnote: “When a per by the successor in office of the original payee son borrowing money of another pledges with to recover the amount collected by Hamthat other a large number of bills receivable mond, the latter pleaded a discharge in bankas collateral security for the loan (many of ruptcy. Judge Pardee declined to allow the them overdue), the pledgee may properly plea, referring to White v. Platt, supra, and hand them back to the debtor pledging them, the cases decided by Judge Blatchford and for the purpose of being collected, or to be Justice Nelson above cited, and held that the replaced by others. All money so collected distinction is clear between the case of a comis money collected by the debtor in a fidu mission merchant or cotton factor selling

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