author:
Brady, J.:
      Daniels, J.: Davis, P. J.:

text:
    In the Matter of the COLUMBIAN INSURANCE COMPANY. (Accounting of GEORGE A. OSGOOD, Receiver.)

      Receivers of insolvent cwporations — accounting by them — may be revived and con tinued against thei/r executors— Oode of Oivil Procedure, secs. 414, 452.
    Where, during the pendency of proceedings for an accounting instituted by the receivers of an insolvent insurance company, one of the receivers dies, the court has power to make an order reviving and continuing the accounting against his executors and directing them to come into such accounting and stand by such orders and decrees as may be made therein.

      Matter of Poster (7 Hun, 129) followed.
    Appeal from an order directing that the proceedings in relation to the accounting of George A. Osgood, as receiver, be revived and continued against his personal representatives, and that they come in and be made parties to the present accounting.

      John M. Bowers, for executors of George A. Osgood, appellants.

      John McDonald, for petitioning creditors, respondents.
   Brady, J.:

The Columbian Insurance Company appears to have been adjudged insolvent in February, 1866, and Joseph Morrison and Benajah Liffingwell were appointed receivers. Morrison having resigned George A. Osgood was appointed in his place by order of April 11, 1866. Subsequently Liffingwell died and Cyrus Curtis was appointed in his place by order of July 21, 1866.

Immediately after Liffingwell’s death it appears that his personal representatives applied for and had an accounting; Subsequently and in January, 1866, Messrs. Osgood and Curtis accounted, in pursuance of an order of this court on a reference, and the report of the referee was confirmed.

It further appears that in 1874 there was another accounting instituted on the petition of these receivers which was referred to Charles A. Peabody, Esq. Pending this reference Mr. Curtis died and John P. Paulison was appointed receiver in his place, and the executors of Curtis were brought into the accounting by order duly made upon their consent.

Pending this proceeding Mr. Osgood died leaving a will which was duly probated and in which he named as his executors the present appellants, "William H. Osgood and Eliza Y. Osgood, both of whom were duly qualified. Thereupon and in due time a petition emanating from the proper source was presented at Special Term ashing for an order reviving and continuing the accounting against such executors, and directing them to come into such accounting and to stand by such orders and decrees as might be made therein. The application was granted and from the order thus made this appeal was taken. The learned justice in the court below based his decision upon the Matter of Foster (7 Hun, 129), Livermore v. Bainbridge (49 N. Y., 130) and sections 414 and 452 of the Code of Civil Procedure.

The power of the court to make this order is elaborately discussed in the briefs of both the appellants and the respondents, but the adjudication first mentioned, namely, the Matter of Foster, is regarded as decisive of the power and authority of the court to make the order and the propriety of directing it as well. There is no difference in principle between the two cases. In the Matter of Foster, Mr. Hoguet was one of the trustees to carry out the provisions of the will of James Foster, Jr., and while acting as such trustee he presented his petition to be relieved from the trust, and such proceedings were had that the prayer of his petition was granted. It was held that the order then made was conclusive upon persons made parties to the proceeding unless subsequently opened or vacated by the court, or set aside for some alleged fraud by ■direct action for that purpose. Subsequently, ón application by the cestui que trust, the order was opened and an accounting ordered. Pending the accounting Mr. Hoguet died and an application was made for an order reviving and continuing the proceedings against his pei'sonal representatives. It was contended in that case that the order to revive the abated proceeding could not be supported, and in the dissenting opinion which was delivered it was argued that the laws affecting and controlling the revival of proceedings relaied to actions only and not to special proceedings, but this view did not prevail. The principle applied to that matter must control in this therefore. The power of the court over the proceeding cannot be questioned, nor can the power of the court over one of its officers be the subject of debate.

The receiver is an officer of the court and is a- quasi trustee whose .duty it is to garner up the estate to which his appointment relates and hold it for such distribution as the court may direct. It is therefore in custodia legis. ' •

The same authority may, be exercised over him as over a trustee,, and indeed the jurisdiction of the court over him is less restricted than over the trustee, whose duties and obligations may be limited by the power which created it. There can be no question that the proceeding could not be continued without the presence of the executors of the'receiver, and it must be supposed also that they are in possession of such information as may be necessary to enable them properly to protect the interests of the testator, while doing justice to the creditors of the company of which their testator was appointed receiver. It must be said also that if any doubt existed as to the power of the court to make the order appealed from, section 452 of the Code of Civil Procedure is sufficiently broad in its provisions to confer the authority. It declares that the court may determine the controversy as between the parties before it, and that where a complete determination of such controversy cannot be had without the presence of other parties, the court must direct them to be brought in. The word used in this section is not “ action,” but “controversy,” and it necessarily embraces such a proceeding as this. The coming in of the executors of Mr. Osgood was absolutely necessary to determine the'controversy, and as the proceeding was pending, it seemed to be unnecessary circumlocution to require the petitioners to commence de novo, and in another form, according to some of the earlier cases, which intimate that the revival can be accomplished only by an action for that purpose.' It is unnecessary, however, to extend this discussion, because the Matter of Foster is regarded as one in which the discussion covered the point involved in this appeal, and as. adverse in its results to the appellant’s success.

The order appealed from must therefore be affirmed, but without costs.

Daniels, J.:

The conclusion for the affirmance of the order is well sustained by the legal necessities of the case, as well as by precedent authority. The appeal therefore is groundless; and the costs and disbursements of the respondent should follow the affirmance of the order.

Davis, P. J.:

I concur that the order should be affirmed. There seems to me to be no good reasons- which should excuse the appellant from the usual costs of the appeal. I concur with my Brother Daniels that the affirmance should be with costs and disbursements.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Beady, J.: Daniels, J.:

license: Public Domain

text:
    WALLACE SHILLITO and Others, Appellants, v. EMMA B. REINEKING, Respondent, Impleaded with JOHN W. REINEKING.

      Contract — is to be governed by the law of the place of its performance — when the question as to what lam is to goven'n should he submitted to the jury.

    This action was brought upon a promissory note given by the defendants, residents of Indiana, to the plaintiffs, residents of Cincinnati, Ohio. The defendant John being indebted to the plaintiffs it was agreed that a note should be given for the amount due, signed by him and his wife, and that the latter should charge her separate estate with its payment. The note in suit was accordingly given, and a clause so binding the property of the wife inserted. It was made and delivered in Indiana, dated Cincinnati, and made payable at-.
    By the laws of Indiana such a note was not, and by those of Cincinnati it was,' binding upon the wife.
    Upon the trial the plaintiffs’ counsel asked to be allowed to go to the jury upon the question as to where the parties intended the contract should be performed, and with reference to what law they contracted.

      Held, that the court erred in refusing the request and nonsuiting the plaintiffs.
    Appeal from a judgment dismissing the complaint, entered upon the trial of this action at circuit.

      John, M. Bowers, for the appellants.

      John L. Logan, for the respondent.
   Beady, J.:

This action was brought to recover on a promissory note made by the defendants, who were residents of the State of Indiana. The defendant John W. was indebted to the plaintiffs, who were merchants residing in Cincinnati, Ohio, for an overdue account. Their agent called upon John ~W. about the indebtedness named and had interviews both with him and his wife, the other defendant. At these interviews she offered to mortgage her property in this State to secure the indebtedness, and both also offered to pay the debt in weekly installments of fifteen dollars. But finally on the 11th of October, 1879, the plaintiffs’ agent offered to accept a note from the defendants for the indebtedness, provided Mrs. Beineking would bind her separate estate, to which she agreed, whereupon the note in suit was drawn and is as follows:

“ $591.03. Cincinnati, October 11, 1879.
One day after date we, or either of us, promise to pay to the ■order of John Shillito .& Co. five hundred and ninety-one dollars and three cents, negotiable and payable at-, and I hereby charge my individual property with the payment of this note, value received, without any relief from valuation or appraisement laws, with interest at the rate of eight per cent per annum, after maturity, and attorney’s fees.
No. . Due 12-15 October.
EMMA B. BEINEKING.
JOHN W. BEINEKING.”

The note was given to John "W". by the plaintiffs’ agent, with instructions that his wife must sign it first, and that he must read and explain to her the clause binding her separate estate. It appears from the evidence that he took the note across the room to where she was standing -at a kind of writing table, which had on it pens and ink; held the note in his hand and engaged in some conversation with her which the agent did not hear, and then brought the note to the agent signed. The answer of the defendant Emma denied, upon information and belief, every allegation in the complaint ; set up a former action against her in the courts of Indiana, and then, upon information and belief, alleged that the debt sought to be charged upon her in this action was one created by John W. Ueineking, her husband, and that she was, at the time mentioned in the complaint, and still is, a married woman, possessed of a separate estate, and as such alleges that she is hot responsible for the debts of her husband.

It will have been perceived that the note was dated at Cincinnati and payable at-, thus, no place being stated for the payment of the note. Upon the trial, it was admitted by the defendants’ counsel that the statutes of Ohio permit a married woman to make a contract in relation to her separate estate, and is the same in that respect as the statute of this State. He moved, however, to dismiss the complaint upon the ground that the note in suit was made and delivered in Indiana, and'being payable in Indiana it was a contract of that State in which the common law prevailed, and was therefore void.

The plaintiff then requested to be allowed to go to the jury on the question as to where' the parties intended the contract should be performed, and with reference to what law they contracted, which request was denied by the court and the plaintiff duly excepted. Whereupon the court dismissed the complaint, to which the plaintiff excepted.

It is conceded that by the laws of Indiana the note could not be enforced, but by the laws of Ohio it is valid. It will have been perceived that the negotiations which took place between the agent of the plaintiffs and the defendants, to secure ■ the payment of the debt of the defendant John W., were marked by the willingness of the defendant Emma to appropriate her property to accomplish the object in view, and the note contained a statement as follows: “And I hereby charge my individual property with the payment of this note.”

There can be no doubt that the defendant knew the obligation which she assumed and the jeopardy in which she placed her individual property by signing the note for her husband’s debt, and the fact that the note was dated at Cincinnati, was a circumstance showing that the plaintiffs intended that the contract should be governed by the laws of Ohio, and thus made effective. And it seems to be a necessary legal consequence, from that fact and the other circumstance to which reference has been made, that the plaintiff was entitled at least to have the question' submitted as to where the parties intended the contract should be performed, and in reference to what law they contracted. This question seems to have been recently examined by the Supreme Court of the United States in Pritchard v. Norton (reported in the Alb. Law Jour., December 16, 1882 [vol. 26], p. 491). The court held there that the question of the validity of a bond, as dependent upon the sufficiency of its consideration, is not a matter of' procedure and remedy to be governed by the lex fori, but belongs to the substance of the contract, and must be determined by the law of the seat of the obligation, and that in every forum a contract is governed by the law with a view to which it is made, because by the consent of the parties that law becomes a part of their agreement; and it is therefore to be presumed, in the absence of any express declaration or controlling circumstances to the contrary, that the parties had in contemplation a law according to which their contract would be upheld, rather than one by which it would be defeated. It was also said in that case that the law which is to decide upon the nature, interpretation and validity of an engagement, which the parties have either expressly or presumptively incorporated into their contract as constituting its obligation, has never been better described than it was incidentally by Chief Justice Marshall in Wayman v. Southard (10 Wheat., 48), where he defined it as a principle of universal law — the principle that in every forum a contract is governed by the law with a view to which it was made.” And it is shown that this principle has been adopted in other cases, and reference is made to other authorities, elementary and otherwise, showing the existence of this principle as one recognized by the law of contracts.

/ Upon the authority of that adjudication, therefore, ivhen we have reached the doctrine that a court may look into the surroundings and consider all the facts and circumstances bearing upon the making of a contract, for the purpose of ascertaining the intended place of its performance, and ascertain that the principle just stated is applicable, all affirmative adjudications resting upon the form of the note itself beeome valueless in explanation of the rule which shall govern in the consideration of the case. The element of intention then becomes paramount, and therefore controlling.

For these reasons it is thought that the court below erred in refusing to submit the case to the jury, as requested by the plaintiffs’ counsel. If the «question had been submitted to them, and they had found that the defendant Emma contracted expressly with reference to the law of Ohio, the verdict would necessarily be upheld. And it may be stated, in conclusion, that if such was not the intention, then the giving of a note was an idle ceremony, by which she incurred no obligation and the plaintiffs received no security.

For these reasons the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Davis, P. J., concurred.

Daniels, J.:

By dating the note at, Oineinnati, where the persons to whom it was delivered resided, it must have been intended that the makers should pay the note there, as no other place of payment was designated by the note. The place of performance was the residence of the creditors; and the validity of the agreement depended upon the laws of the State of Ohio. By the laws of that State it was legal and binding, and the plaintiffs should have been allowed to recover upon it. I agree therefore to a reversal of the judgment and another trial of the action.

Judgment reversed, new trial ordered, costs to abide event.


author: Daniels, J.:

text:
    ROSIE HUGHES, JOSEPH HUGHES and NELLIE HUGHES, Appellants, v. JAMES HUGHES and JAMES HUGHES, Jr., a Minor, Respondents.

      Partition — when an action may be maintained by tenants in remainder— Code of Civil Procedure, sec. 1533.
    Persons holding, as joint tenants or tenants in common, a vested remainder or reversion in real property can only maintain an action for its partition, during the continuance of the prior estate therein, in the particular cases specified in section 1533 of the Code of Civil Procedure.
    Such an action can only he maintained where an actual division can he made between the claimants, without great prejudice to the owners.
    In no case can a sale of the property he ordered.

      Appeal from a judgment dismissing the complaint, entered upon the trial of this action at a Special Term.

      Samuel G. Courtney and James P. Nieman, for the appellants.

      A. J. Simpson, for the respondents.
   Daniels, J.:

The plaintiffs brought this action to obtain a judgment making partition of real estate, to which they had become entitled as the heirs of Ellen Hughes, subject to a life estate in James Hughes, her husband, as tenant by the courtesy. The estate of the life tenant was not impeached in any manner in the action, but it was sustained as a legal interest; and under the law as it was administered previous to the present Code of Civil Procedure such an action could not be maintained by the persons whose title to the property was only that of remaindermen or reversioners. (Sullivan v. Sullivan, 66 N. Y., 37.) And Jenkins v. Fahey (73 id., 355) was in no sense inconsistent with this determination, for there the right to prosecute an action for partition was sustained upon the fact that it was invoked in favor of tenants for life, who were in the possession of the property. The case of Morse v. Morse (85 N. Y., 53) has still íess to do with the right of a remainderman or reversioner to maintain an action for the partition of the estate; and Therasson v. While (52 How., 62) is in no respect inconsistent with the judgment ordered at the trial. In Chism v. Keith (1 Hun, 589) it is true that such an action between parties having title in remainder was sustained under the preceding statute. But by the determination afterwards made in Sullivan v. Sullivan (supra), this decision must be held to have been deprived of its authority.

As the provisions of the present Code have been enacted, an action for partition is allowed to be maintained by joint tenants, or tenants in common in a vested reminder or reversion in a specified class of cases. (Code Civil Pro., § 1533.) But this right has been expressly limited' to property which is capable of an actual division between the claimants.

When no such partition or division of the property can be made, there this section of the Code has prohibited the maintenance of such an action. For it has been declared that the property cannot be sold in such an action, and further, “ if it appears in any stage thereof that partition cannot be • made without great prejudice to the owners, the complaint must be dismissed.” It did so appear in the present action ; for a sale of the property, if it could be ordered, would deprive the life tenant of a large portion of its ordinary income, limiting and restricting him to the low rate of interest which might be derived from an investment of the proceeds. It also appeared that the property itself could not be partitioned, for it consisted of a single lot of land of about the usual dimension of lots in the city of New York.

From the description given of this lot of land in the complaint and in the decision of the court, it is entirely clear that no actual partition of it can be made. The only mode by which it could be divided would be a sale, and such a sale at the suit of these plaintiffs has been positively prohibited by the provision of the Code to which reference has been made. Other sections have been referred to and relied upon as apparently sustaining the right of the plaintiffs to maintain this action during the continuance of this life estate. But they contain nothing which will permit the court to direct a sale of this property for the purpose of making a partition of it, in violation of the positive restraint created by this preceding section. For these reasons, as well as those assigned in the opinion at the Special Term, the judgment was right and it should be affirmed, with costs.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed, with costs.


text:
    THE PRODUCE BANK, Appellant, v. MARY D. BACHE, Respondent, Impleaded with ANDREW J. BACHE and JAMES BALDWIN.

      Draft — indorsement of, by a married, woman — when she may show that she received no consideration for so doing.

    This action was brought by the plaintiff upon a draft drawn by one Bache to the order of and indorsed by himself, and also by his wife, who by her indorsement declared it to be a lien upon her real and personal estate. Upon the trial the wife claimed, and produced evidence tending to prove, that the note was given for an existing indebtedness due from her husband to the plaintiff; that she received no consideration for indorsing it, and charged the payment thereof upon her real and personal property, at the instance and request of the plaintiff’s president, for the sole purpose of having the paper in the hank appear, in form, to he a proper and legal evidence of an existing indebtedness, and satisfactory in form to the hank examiner.

      field, that these facts if proved showed that there was no consideration to support her contract for indorsement and constituted, as to her, a defense to the action.
    Appeal from a judgment in favor of tbe defendant Mary D. Bacbe, recovered on tbe verdict of a jury, and from an order denying a motion for a new trial, made upon tbe minutes of tbe justice before whom tbe action was tried.

      John L. Qad/walader, for tbe appellant.

      Samuel Id. Handall, for tbe respondent.
   Daniels, J.:

The action was brought to recover tbe amount due upon a draft for $8,700 drawn by tbe defendant Andrew J. Bacbe upon James L. Baldwin, dated on tbe lltb of November, 1878, and payable sixty days thereafter to tbe order of tbe drawer. It was indorsed by tbe defendant, and by the terms of her indorsement she declared it to be a ben on her real and personal estate; and as the facts were set out in tbe answer under which tbe indorsement was abeged to have been made, tbe chief defense consisted of tbe want of consideration. The indebtedness for which tbe draft was given bad originated in discounts made by tbe bank, but for the payment of which tbe respondent was 'not liable. Tbe indebtedness was carried along by renewals until tbe draft in controversy was given, and the evidence tended very directly to show that tbe language in terms charging tbe real and personal property of tbe defendant by tbe indorsement was placed upon tbe draft at tbe instance and request of the president of tbe bank for tbe sole purpose of having tbe paper in tbe bank appear in form to be a proper and legal evidence of an existing indebtedness. She received no consideration for the indorsement, and appeared to have made it solely and wholly at tbe instance and request of the president of the bank in order to give tbe paper tbe appearance of regular business paper. Whether she did give it in that manner was the main point in controversy upon the trial; and further evidence in support of this theory was given to the effect that she was not expected to pay the paper, but that her indorsement in this form was desired to render it satisfactory to the bank examiner. The contract of indorsement, like all others, requires a consideration to render it legal and binding upon the indorser; and if it was true that she indorsed the draft in this form at the instance of the president of the bank merely to give it the appearance of available paper, then as the debt was not her’s there was no consideration which, in legal contemplation, would sustain her liability as a married woman upon the indorsement. The evidence as to this fact was not very conflicting, certainly sufficient was shown in favor of the defendant to warrant the jury in. concluding her theory to be the true one in the case, and for that reason they could very well find, as they did, a verdict in her favor.

The bank was not a bona, fide holder of this paper for value, even if they did surrender, upon receiving it, preceding obligations held for the same indebtedness, for the reasons that the knowledge of the president of the bank of the manner in which the indorsement was obtained, and the fact that it *had no consideration to support it, was notice to the bank of this infirmity in the indorsement. In these respects the case differed from that of The Grocers' Bank v. Penfield (69 N. Y., 502), and the other authorities cited in support . of the appeal, for in them the liability was incurred at the instance of the debtor himself to enable him to obtain further time for the payment of the debt. And as the paper was made to be so used, the forbearance obtained by means of it formed a legal consideration for the extension of the credit, and the' indorser consequently became legally liable to pay the debt.

The evidence which was given upon the trial was properly received, for it is always competent against the party receiving such paper, in the manner in which this was received by the bank, to prove as a matter of fact that it was made without consideration, and that the party who would be otherwise chargeable never became legally liable upon it, and the evidence taken upon the trial was all pertinent proof for these purposes.

A further defense was made that the defendant was not charged as indorser by a proper protest of the paper, but under the evidence that point likewise became a question of fact for the jury, and it was submitted to them in as favorable a manner as the plaintiff had any reason to claim it should be. If that had been the only difficulty in the case the plaintiff would probably have encountered no obstacle in the way of recovering a verdict against this defendant. The serious trouble in the case arose under the evidence tending to show a want of consideration for this indorsement and charge on the part of this defendant; that was very properly as well as carefully submitted to the jury; and as there are no'exceptions in the case upon which the verdict can be set aside, the court cannot interfere with the result on this appeal. The points to be decided were matters of fact upon which siifficient evidence was given to warrant the result reached by the jury. The judgment and order, therefore, should be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment and order affirmed.


author: Davis, P. J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. EDWARD HOVEY, Appellant.

      Practice — motion-f'or a neto trial in a capital case upon the ground of newly discovered evidence — Code of Criminal Procedure, secs. 465, 466 and 517 — What must he shown to justify the court in making the m'der — appealability of such order to the General Term.

    The defendant was tried and convicted of murder in the first degree for shooting his sister-in-law on April 20,1882. There was present at the time of the shooting of the deceased, the defendant and his wife. The defendant was examined ■ in his own behalf and testified that the shooting was accidental, stating in detail how it occurred and w]iat he did and said on that day.. It appeared by the testimony of several of the witnesses, and to some, extent by the testimony of the defendant himself, that he had been drinking for some days before the commission of the crime, and that he was intoxicated at the time of its com- ■ mission. The conviction was affirmed by the General Term ou March twenty-second, and by the Court of Appeals on July 5th, 1883.
    On July 11, 1883, the defendant moved for a new trial, under sections 465, 466 and 517 of the Code of Criminal Procedure, upon the ground of newly discovered evidence. The affidavits, which were made by public officers attached to the police and prison force of New York, tended to show that the defendant was arrested on April 15, 1882, and committed to prison for three days for intoxication ; that at the time of his arrest and while in prison he talked wildly and acted violently so that it was necessary to confine his hands, and that at the time of his discharge he had not fully recovered from the effects of the liquor; that upon the day after his arrest for the homicide the city 'physician visited him and found him in a highly nervous and excited condition, the result of the excessive use of alcohol; that he complained of being unable to sleep or control himself, which symptoms resulted from the abuse of alcohol and the deprivation of sedatives he had been in the habit of taking; that he was under treatment for these troubles for some two weeks; that in the opinion of the said physician at the time of such examination the mind of the prisoner was in such a condition that he was oblivious of his actions during the week preceding said examination. These facts were not communicated to the defendant’s counsel until the latter part of June, 1883.

      Held, that it was not probable that the evidence, if received, would have changed the verdict.
    That the evidence had not been discovered since the trial within the meaning of the said section, inasmuch as the facts of his arrest, confinement an(l sickness must have been known to the defendant, although he might not have "known the exact condition, physically and mentally, in which he then was, and that it was his duty to have made these facts known to his counsel if he deemed them important; that the only fact newly discovered was that it might have been of some importance to himself if evidence of these facts had been produced on the trial.
    That as the condition and mental operations of the defendant were questions necessarily involved upon the trial the evidence was cumulative.
    That the failure of the defen'dant to produce the evidence upon the trial was due to his want of diligence.
    A majority of the court were of the opinion that the order of the Special Term was not appealable to the General Term, but concluded to hear the appeal without finally determining this question, because one of the judges entertained a different opinion and because the case was a capital one. ,
    Appeal from an order of tbe Special Term denying a motion for a new trial, made under sections 517, 465 and 466 of tbe Code of Criminal Procedure, upon tbe ground of newly discovered evidence.
    Upon tbe bearing a motion was made to dismiss tbe appeal upon tbe ground that tbe order of tbe Special Term was not appealable.
    Tbe defendant was sentenced on tbe 29tb day of September, 1882, to be banged for murdering bis wife on April 20,1882, by shooting ber. Tbe conviction was affirmed on appeal to tbe General Term (29 Hun, 382) on March 22, 1883, and by tbe Court of Appeals on July 5, 1883. Tbe motion for a new trial was made on July 11 and denied July 18, 1883. Tbe facts upon which tbe motion was based did not come to tbe knowledge of tbe defendant’s counsel until the latter part of June, 1883.
    The newly discovered evidence tended to show that on the 15th day of April, 1882, eleven days prior to the homicide, the prisoner was found insensible in a hall-way; that he was arrested by a police officer and on the following morning was arraigned before a police justice charged with intoxication; that at the time of his arrest the prisoner was very much under the influence of liquor and had the appearance of a man who had been drinking for some days; that on his way to the station the prisoner talked wildly and was very violent in his conduct; that at the time of his committal to prison in default of the payment of the fine imposed he was still very much under the influence of liquor and had all the appearance of a man who had been drinking to excess; that while in prison he became very violent and it became necessary for his keeper to place a strong leather belt around the prisoner’s waist with iron handcuffs attached in which his hands were placed sc as to prevent him from doing himself any harm or injury, and also to prevent him from doing others any harm or injury; that at the time of his discharge from prison, seventy-two hours subsequent to the time of his arrest, he had not fully recovered from the effects of the liquor he had previously been indulging in; that upon the day immediately succeeding the homicide the prisoner was visited by the physician attached to the city prison and was found to be in a highly nervous and excited condition, the result of the excessive use of alcohol; that he complained of being unable' to sleep or to control himself, which was due to the abuse of alcohol and the deprivation, of sedatives such as opium, chloral and bromide of potassium, to the use of which he had been addicted for some time; that from time to time while in prison charged with the homicide he was found suffering from nervousness and insomnia, and in tbe opinion of the physician attached to the city prison for the last six years, and one of the examiners in lunacy given as a medical expert, the mind of the prisoner was in such a condition that he was oblivious of his actions during the week preceding said examination. The affidavits establishing these facts were made by the officer by whom the arrest was made, by the keeper of the prison and by the city physician in attendance thereon.

      John Vincent, for The People.

      WilUam F. Kintzing and Thomas F. Grady, for the prisoner.
   After the closing 'of the argument the opinion of the court was pronounced orally by

Davis, P. J.

The court have given to the case on this appeal and to the motion to dismiss the appeal, their careful consideration and have reached conclusions that will now be indicated.

As to the appealability of the order a majority of the court are of opinion that no appeal lies in such a case. Section 517 of the Code of Criminal Procedure declares in what cases appeals may be taken by the defendant in criminal cases. It is in these words: “An appeal to the Supreme Court may be taken by the defendant from the judgment on a conviction after indictment, and upon the appeal any actual decision of the court in an intermediate -order or proceeding forming a part of the judgment-roll as prescribed by section 485 may be reviewed.”

Section 485 makes provision for the inclusion in the judgment-roll which may be brought up by the appeal under section 517, of “ a copy of the minutes of any proceedings upon a motion either for a new trial or in arrest of judgment.”

Provision is therefore made for the revision of motions of,, this character when they are embraced in the judgment-roll as provided - by section 485. But we look in vain in the act for any provision for an appeal on a motion for a new trial except in the case and form presented by section 517. At common law no appeals could be brought from judgment orders or interlocutory proceedings in criminal cases. The right of appeal in such cases is purely statutory; and in. cases where there is no statutory provision the right of appeal does not exist. The Code has made no statutory provision for an appeal from an order denying a motion for a new trial in any case where the motion is made after final judgment in the action, unless the findings and order be embodied m the judgment-roll. It has, however, by the provisions of the. act of 1882 (now section 517 of the Criminal Code) granted to the convicted party an opportunity to make a motion in the trial court in capital cases, or when the application cannot be made to the trial court prior to the execution of the sentence, by application to a justice of the Supreme Court or a Special Term thereof. But while it has given this new privilege to a part}' convicted of a capital crime, where sentence of- death has been pronounced, the' legislature has not seen fit to superadd the right of appeal by any statutory provision. It has only granted an additional privilege to the convicted party which terminates with the application to the court or judge before whom the motion is made. A majority of the court have come to the conclusion that this is the correct view of the statutory provisions and of the law in respect of the right of appeal in such cases.

But notwithstanding the views of the majority of the court, and especially because one of the judges entertains a different opinion and because the case is a capital one involving the life of the defendant, we have concluded that -it is our better course to consider the appeal and dispose of it on its merits without finally determining the question whether or not an appeal lies.

The provision of the act of 1882 (now section 466 of the Code of Criminal Procedure) allows in capital cases at any time before the sentence is executed, an application to be made to the court before, which the trial was had, or if that court be not in session to any justice of the Supreme Court or any Special Term thereof, for a new trial upon several grounds. These grounds are enumerated by section 465. They are seven in number, upon all or either of which a motion of this character can be made under section 466. But when the motion is founded upon the seventh subdivision of section 465 the Code expressly prescribes what must appear as sufficient grounds for granting a new trial.

That subdivision is in these words: “ "When it is made to appear by affidavit that upon another trial the defendant can produce evidence such as, if before received, would probably have changed the verdict; if such evidence has been discovered since the trial; is not cumulative; and the failure to produce on the trial was not owing to want of diligence.”

On such a motion the court or judge is to act hot only upon the affidavit presented, but also, of course, upon the testimony and proceedings had and taken upon the trial at which the convictiorz' occurred; and it must be considered whether the evidence claimed. to be newly discovered, if it had been given upon the former trial, would probably have changed the verdict.

Now, if we take the case the prisoner made for himself by his own testimony, and assume that his testimony would have been the same if this new evidence had also been produced, we can hardly conceive it possible for the jury to have rendered any other verdict; because his evidence and the manner in which he detailed the act which constituted the homicide, and states what he did and what he said on that day, and the whole effect of his version of the transaction would be in direct conflict with all that is sought to be added upon the new trial. If the alleged new evidence had been given in the case, the jury would have been driven to the necessity of rejecting his own account of the affair in order to give him the benefit of such evidence, so that we are not able to come to any conclusion different from that reached by the justice at Special Term upon the question whether it would probably have changed the verdict. But if we had reached a different conclusion we must then be satisfied that the evidence has been discovered since the {rial, within the meaning of the law. That it existed before the trial is indisputable. Has it been discovered since the trial within the meaning of the law ?

We must assume that the prisoner at the time of the trial knew that he had been arrested ten days previous to the commission of the crime, in a state of intoxication, and had been in prison three days, and subject to the close confinement described in the affidavit, by reason of his conduct, although he may not have known the exact condition, physically and mentally, in which he then was. All that preceded the crime, therefore, in respect of his condition, so far as relates to the intoxication and the arrest and imprisonment for intoxication, were known to the prisoner. If those facts were known to him before the trial they cannot properly be called newly discovered evidence. They were facts which it was his duty, if he regarded them as important, to have made known to his counsel and to have had them brought to the attention of the court by summoning witnesses.

"What occurred after the commission of the crime and his arrest as detailed by the affidavit of the prison doctor is also not newly discovered. It is not the development of some unknown fact, but of facts which had previously existed, and must have been well known to the accused. If he were under the treatment of the medical man who makes the affidavit, is there any question but that that fact was within his knowledge. The only thing newly discovered is the fact that this evidence might have been of someimportance_rto himself if it had been produced. That is not what the law contemplates where a party seeks a new trial upon this ground.

But, again, the new evidence must appear not to be cumulative. The fact that it is not cumulative must be shown affirmatively. In this case it appeared on the trial by the testimony of several of the-witnesses, and to some extent by the testimony of the defendant himself, that he had been drinking for some days before commission of the crime, and that he was intoxicated at the time of its commission. The subject, therefore, of this condition by reason of the use of intoxicating drinks, was a circumstance presented by the testimony for the consideration of the jury. It would be cumulative evidence-in the meaning of the law to give additional proof of his intoxication and of its effect prior to the commission of the crime by producing or further examining the witnesses who could testify to those facts. There is therefore no doubt that the learned court was-correct in holding that if this evidence was produced on a new trial it would be cumulative in its character. "We do not lose sight of the fact, insisted upon by the learned counsel, that the-evidence goes so far as not merely to show habits of intoxication, but also that the prisoner had by the use of sedatives, as well as-of intoxicating liquors produced a diseased condition of the mind which he was incapable of controlling. That evidence, however,, would of necessity have been required to be sufficient in strength to convince the jury that his mind was in such a condition as to be incapable of forming the deliberation and premeditation required to constitute murder in the first degree. But evidence upon that question was of necessity before the jury. The whole case, as a matter of course', involved the condition and mental operations of the-accused party at the time of the commission of the crime. In such cases that question is one of primary importancé. If therefore any evidence is produced on the-trial tending to establish that the mental condition of the party was -such that he did not, or could not form,. tlie deliberation required by the statute, all that has a tendency to make that evidence more potent in its influence on the minds of the jury is cumulative. So that if an accused party relies for the purpose of proving the character of the crime, upon the condition of his mind at the time of doing the act, he must proceed to'establish that condition by the production of all evidence bearing upon that question within his knowledge, or which he could have procured by proper diligence. In this case the prisoner went into that evidence to a certain extent. He brought before the jury the proof of the fact that he had been drinking and was intoxicated to some degree on that morning; and accompanied that evidence with his statement clear and coherent, and as it appears upon the record if credited by the jury, justifying a verdict of minor character because of. the alleged accidental nature of the act which caused the death. All the evidence that is offered here relative to his condition is in our opinion cumulative within the sense of the law.

In addition, however, to the things already noticed, the section requires it to appear that the failure to produce the alleged newly discovered evidence on the trial was not owing to want of diligence.

It is perfectly obvious, as we think, that the failure to 'produce this evidence upon the trial was owing to want of diligence. We do not mean to impute want of diligence, in any sense of neglect of duty, to the counsel employed. They have at no time been lacking in diligence in doing their whole duty toward this prisoner, and the motion now pending is in itself convincing evidence not only of diligence but of extreme diligence in favor of this unhappy man. But what the court mean by lack of diligence is the omission on the part of the accused to disclose the facts to his counsel so as to enable them to judge whether matters of any kind were within his knowledge,, which would be important to him on the trial. Diligence on his part would have disclosed the fact of his arrest ten days before for intoxication, his confinement in prison and the treatment he was subjected to, and enabled them to judge whether that indicated the condition of mind now claimed.

So, also as it seems to us, very slight diligence on his part would have disclosed his illness in prison and the attendance he received from the doctor; and a single question to the doctor would have developed the facts as to the condition of the prisoner’s mind for a week previous to the commission of the crime judging by his condition as the doctor’s affidavit states it, several days after his imprisonment for the crime. On none of these several requirements of the seventh subdivision of section 465 of the Code, do the affidavits come up to what the law demands.

The result is that this court is of opinion on the merits that the decision of Mr. Justice Donohue, at Special Term, was in all respects entirely correct; and that it is our duty to affirm the order, without dismissing the appeal because the order was not appealable, as we might do under the opinion of the majority of the court.

The order of the Special Term must, therefore, be affirmed.

Present — Davis, P. J.,, Brady and Cullen, JJ.

So ordered.


text:
    ISAAC N. PHELPS and Others, Plaintiffs, v. ROBERT B. BORLAND, Defendant.
    No. 1.

      Bill of exchange — one apparently liable, individually, cannot show that he intended to act as an agent for another pao'ty to the bill- — foreign bankrupt proceedings — not valid here as against a citizen who took no pa/rt tlwein.

    This action was brought against the drawer of a bill of exchange, which was drawn in New York upon persons residing and carrying on business in Liverpool. It was drawn to the order of and indorsed by the drawer. Upon the trial the defendant sought to prove that in drawing thé bill he acted as the agent of the drawees, and that the plaintiffs had notice of this fact when they received it.

      Held, that as there was nothing upon the face of the bill or in the signature of the drawer to show that he' only intended to become a party to the bill in his capacity of agent, the evidence was properly rejected.
    Before accepting the bill the drawees became bankrupt and were discharged by their creditors by virtue of a compromise accepted by them, as prescribed by the English bankrupt act. The amount due upon this draft, as also the amounts due upon other similar drafts which had been accepted by the drawees and were held by the plaintiffs, were included in the schedules prepared by the bankrupts.
    In these proceedings the plaintiffs proved all their claims, except that founded upon the draft now in suit, and accepted the dividends paid upon them, none being paid upon this draft.

      Held, that as the plaintiffs were citizens of this State, and as they had not proved or received a dividend upon this claim, the drawer could not set up the discharge of the drawees in the English bankruptcy proceedings as a defense to this action.

      Motion for a new trial upon exceptions, ordered to be heard in the first instance at the General Term, after a verdict had been directed in favor of the plaintiffs.
    The action was brought against the defendant, as drawer of a bill of exchange for £1,500 upon the firm of Samuel Johnston & Co., of Liverpool, which the plaintiffs discounted. The answer set forth the defense that the bill was drawn by the defendant in a representative capacity, as agent for said Samuel Johnston & Co., on their behalf and in their business; that it was discounted on their credit alone, and that the defendant had no interest in it; all of which was known to the plaintiffs. The supplemental answer alleged the failure of the firm of Samuel Johnston & Co., their proceedings in bankruptcy at Liverpool; that the plaintiffs voluntarily proved their claim in those proceedings, accepted the dividend declared by the estate and released the said debtors.
    Upon the trial it appeared that the drawees, who had not accepted the bill, were discharged by composition proceedings, instituted as provided in the English bankrupt act, and that this draft, together with other similar ones held by the plaintiffs, were set out in the schedules prepared by the bankrupts.
    The evidence further showed 'the proof by the plaintiffs in those proceedings of their entire claim, exclusive of the draft in suit, and their acceptance of the dividend paid in the composition proceedings in accordance with the resolutions, no dividend being made on the draft in suit. 'The regularity of the proceedings was conceded, as was'also the fact that the composition was carried out by the debtors, and that the plaintiffs are citizens of New York.

      Thomas H. Hubbard, for the plaintiffs.

      Frank D. Sturges, for the defendant.
   Daniels, J.:

The action was brought to recover the amount of a bill of exchange drawn by the -defendant, resident in the city of New York, upon Samuel Johnston & Co., of Liverpool, for the sum of £1,500, and made payable in London.

The bill was protested for non-acceptance, and upon trial of the action the defendant was held liable as ¿he drawer. It was in the following form:

New York, June 6, 1879.

Sixty days after sight of this first of exchange (second and third of same tenor and date being unpaid)- pay to my order the sum of fifteen hundred pounds sterling, value received, and charge to account as advised.

R. B. BORLAND.

To Messrs. Samuel Johnston & Co., Liverpool:

No. 406. Payable in London.

Indorsed : R. B. Borland.

Margin. Advice of draft.

T© Messrs. Sam’l Johnston & Co., Lvoerpool:

No. of draft 406; date, June 6, ’79; amount, £1,500; against shipts. per sch. N. Hand, Balt, to Pern’o.

Please protect the draft as advised above and oblige drawer.

R. B. BORLAND.

New York, Jwne 6, 1879.

The defendant gave evidence showing that he acted in the transaction out of which the bill originated as the agent of the drawees, and tending to show that notice of that fact was given to the plaintiffs before they received it. But the court declined to submit the point to the jury whether the defendant was or was not the agent of the drawees and, in that capacity only, a party to the bill. This ruling was legal and proper, for the fact was not shown upon the face of the instrument or by the signature of the defendant thát he intended only to become a party to the bills in his capacity of agent. While he was in fact the agent of the drawees in the transaction of their business, it was still competent for him to make himself a party to this paper in such a manner as to become personally bound for the payment of the debt. And by omitting to subscribe it as the agent of. the drawee, or in any other manner to state in it that he intended only to contract in that capacity, he did bind himself personally for the payment oí the bill The law upon this subject-has been stated to be “that bills and notes and writings under seal, signed by an agent in his own name, bind him exclusively ” (Whart. on Agency, § 504); “ and that an agent’s contract in order to bind the principal must be in the principal’s name, is a conclusion which results from the nature of the transaction itself.” (Id., § 280.) This rule was deemed to be the settled law and was so stated by Parsons (vol. 1) on Bills and Notes, 92, where it was declared that “ if the agent sign the note with his own name alone, and there is nothing on the face of the note to show that he acted as agent, he will be personally liable on the note and the principal will not be liable. And although it could be proved that the agency was disclosed to the payee when the note was made, and that it was the understanding of all the parties that the principal and not the agent should be held, this will not generally be sufficient either to discharge the agent or to render the principal liable on the note.”

In a more general form the same point was considered in Babbett v. Young (51 N. Y., 238), and it was held that parol.proof was not admissible to show that a person who. had become a party to a contract by subscribing it with his own name, to prove that he acted in doing so only as the agent of another person. And the case of Auburn City Bank v. Leonard (40 Barb., 119), afterwards affirmed by the Court of Appeals, is to the same effect. Under the circumstances of this case the court very properly, therefore, refused to submit the point of the defendant’s agency to the jury.

Evidence was given upon the trial, under a supplemental answer, setting up the defense upon which it was assumed that the drawees of the bill had.been discharged as bankrupts by á compromise with their creditors under the bankrupt laws of England. This defense was rather obscurely presented in the case. But assuming it to have been made out that such a discharge had been obtained by the principal debtor, still the defendant in the case could not on that account be relieved from his liability.

The rule upon that subject is that the creditor “ may prove his debt in bankruptcy without surrendering the security of the third person which he holds; and may, notwithstanding such proof, proceed to enforce his security against such third person, provided, however, he does not take under the bankruptcy and the security more than the full amount of his debt.” (Matter of Babcock, 3 Story, 393, 400; Blanchard v. Russell, 13 Mass., 1; Phillips v. Salomon, 42 Ga., 192; Claflin v. Cogan, 48 N. H., 411.) The drawees were discharged from liability upon the paper by no act of the plaintiffs, but by a proceeding instituted and carried on by themselves under the authority of the law of their domicil, and for the consequences of their act the plaintiffs can in no legal sense be held to be responsible. In this respect the case is distinguishable from Brown v. Williams (4 Wend., 360); Farmers’ Bank v. Blair (44 Barb., 641); Newcomb v. Raynor (21 Wend., 108); Deck v. Works (18 Hun, 266); and Vose v. Florida Railroad Company (50 N. Y., 369), where the party sustaining the relation of surety to the paper was relieved because of the act of the creditor himself. The extinguishment of the drawee’s liability was from no fault o.f the plaintiffs, and it was a contingency against which the defendant himself had contracted by becoming a party, as he did, to the bill. Upon the facts, as they are made to appear under the most favorable construction which could be given to them for the defendant, he was liable for the payment of the debt. The verdict was properly directed against him and his motion for a new trial should be denied, with costs.

Davis, P. J., and Brady, J., concurred.

Motion for new trial denied, with costs.


text:
    ISAAC N. PHELPS and Others, Plaintiffs, v. ROBERT B. BORLAND, Defendant.
    No. 2.

      Bankruptcy — effect of a discharge granted in a foreign country as against citizens of this country —■ it becomes effective if they prove their debts and accept their proportion of the assets.

    Tliis action, was brouglit by the plaintiffs, residents and citizens of the United States, upon a bill of exchange, payable in London, drawn in New York by the defendant upon and accepted by a firm residing and doing business in Liverpool. After the acceptance of the bill the drawees became bankrupt and were discharged by their creditors by virtue of a compronpse accepted by them as prescribed by the English bankrupt act. The plaintiffs proved the indebtedness due upon the draft in those proceedings and accepted their proportional part of the composition paid by the drawees.

      Held, that by so doing they rendered the discharge acquired by the drawees a complete and effectual extinguishment of the debt and thereby released the defendant, the drawer, from all liability upon the draft.

      It seems, that if the plaintiff had not proved the debt and accepted the composi. tion the discharge would have been ineffectual as to them.
    Motion by the plaintiffs for a new trial upon exceptions, ordered •to be first heard at the General Term, after a verdict had been directed in favor of the defendant.

      Thomas H. Hubbard, for the plaintiffs.

      Frank D. Sturges, for the defendant.
   Daniels, J.:

The action was against the defendant as the drawer of a bill of exchange.. The bill was dated March 28, 1879, and was drawn upon Samuel Johnston & Co., of Liverpool, for the sum of 2,750 pounds sterling. It was accepted by the drawees, payable in London. The bill and the acceptance were in the following form:

Sixty days after sight of this first of exchange, second and third of sanie tenor and date being unpaid, pay to my order the sum of twenty-seven hundred and fifty pounds sterling for value received and chargfe to account as advised.

R. B. BORLAND.

To Messrs. Samuel Johnston & Co., Liverpool.

No. 393. Payable in London.

SAMUEL JOHNSTON & CO.

12-6 D. S. N.

10 June, 1879.

Indorsed: R. B. Borland. Pay to the order of the Union Bank of London.

Rec’d per pro. of the Union Bank of London.

J. WARREN, Manager.

When it became due the acceptors failed to pay it and the defendant was in form charged by the ordinary protest and notice. He relied upon the fact as one of his defenses that he drew the bill as agent of the drawees, and that his relation to it was known to the plaintiffs 'when they received it. But that defense has been disposed of adversely to him in an action by the same plaintiffs upon another bill drawn by him in a similar form and upon the same drawees.

A further defense consisted in’ the fact that after the bill had been drawn and accepted the acceptors had.been discharged by their creditors under the authority of the English bankrupt laws, in which the plaintiffs proved this indebtedness and received their proportionate part of the composition paid by the acceptors. These facts were proved upon the trial and' were held by the court to create a legal defense in the defendants favor, and accordingly a .verdict for him was directed in the action. Whether this direction can be sustained upon these facts is the controlling point to be determined in the disposition of this motion.

The bankrupt proce'jdings were commenced and carried on under the English bankrupt act of 1869, which was.given in evidence upon the trial. By that act the creditors of the bankrupt have been empowered to discharge him from his debts upon a compromise or composition accepted 'by them from him in ’satisfaction .of their demands, and the proceeding provided for has been declared to be binding on all the creditors whose names and addresses and the amount of the debts due to whom are shown in the statement of the debtor produced to the meeting of the creditors, at which their resolution shall be adoptéd for the adjustment of their demands and the debtors discharged. And by a concession made upon the trial the fact was established that the statement required by the act was made by the debtor and presented at the meeting of his creditors containing the names and addresses of the. creditors to whom the debts were due, including the names of the plaintiffs and this particular debt in question. The creditors who were present, but among whom the plaintiffs were not included, accepted the composition offered by the acceptors of the bill and in consideration thereof granted them a discharge from their debts.

Under the English rule, as it was stated in Ellis v. McHenry (L. R., 6 C. P., 228), this discharge would operate as a complete and effectual extinguishment of the debt, not only in England but elsewhere. And a like view was either incidentally or directly, taken of the law in Murray v. De Rottenham (6 Johns. Ch., 52); Peck v. Hibbard (26 Vt., 698); Very v. McHenry (29 Me., 206); LeRoy v. Crowninshield (2 Mason, 151); Green v. Sarmiento (1 Pet. C. C., 74; 2 Kent [7th ed.], 476, 477; Story on Conflict of Laws [5th ed.], § 335).

This principle was held to be deduced from the well established rule that the force and effect as well as the validity of a contract are to be determined by the laws of the country where by its terms it is to be performed. It has been often considered by the courts, and this rule has been deemed to be well established both by reason and authority (Smith v. Smith, 2 Johns., 235; Mather v. Bush, 16 id., 233; and Sherrill v. Hopkins, 1 Cow., 103, 108), where it was stated “ that the law of the place where the contract is made is to control it, unless it appear upon the face of the contract that it was to be performed at some other place, or was made with reference to the laws of some other place.” (Hibernia Nat. Bank v. Lacombe, 84 N. Y., 367, 378.)

Put neither the Eederal courts nor the courts of this State in their more recent adjudications, nave sanctioned this broad principle, giving general effect to discharges obtained by a debtor under the provisions of the English bankrupt laws. It has been considered more particularly with reference to the effect of discharges obtained under the insolvent laws of the States, and an effort has been made for that reason to distinguish these adjudications from the general principle already mentioned, because of the restraint imposed upon State legislation by the Eederal Constitution. Put this restraint is applicable only to contracts entered into before, the enactment of the insolvent law of the State, relied upon as affecting them. Where the contract is entered into before the enactment of the State insolvent law, there the State has no authority to discharge it in that manner, for it can pass no law impairing the obligation of a contract. Put where the contract is entered into subsequent to the passage of the insolvent law, then the Constitution of the United States in no way interferes with the act, but its effect is to be otherwise determined, by the courts, and it bas already been so considered in cases which must be accepted as controlling authority over this subject. In the consideration of the effect of such laws it has been determined that the discharge of the debtor under their provisions will include only debts and contracts existing against the debtor in favor of another citizen or inhabitant of the same State, and that the act will not include a debt, or contract entered into in the State of the debtor’s residence, owing to or with a resident or citizen of. another State. As to the latter class the discharge under it will be ineffectual, while as to the former the demands will be discharged and extinguished. (Scribner v. Fisher, 2 Gray, 43; Fiske v. Foster, 10 Met., 597; Hale v. Baldwin, 1 Cliff., 511, 517; affirmed, 1 Wall, 223.)

The principle upon the effect of which the State insolvent laws have been so far restrained in their operation as to exclude debts owing to and contracts in favor of citizens of other States, is “ that insolvent laws have no extra-territorial operation upon the contracts of other States; that the principle is applicable as well to the discharges given under the laws of the States as of foreign countries; and that the anterior or posterior character of the law under which the discharge is given with reference to the date of the contract, makes no discrimination in the application of the principle.” (Ogden v. Saunders, 12 Wheat., 213, 272.) And if this principle can properly be made applicable to the insolvent laws of the States, the reason upon which it has been founded will render it equally as applicable to the discharge of a debtor under the bankrupt laws of a foreign country, and it was so considered in the case just referred to.

The English rule was regarded as having grown up under the policy of Great Britain as a commercial nation, but it was declared in the prevailing opinion of the court to be “perfectly clear that in the United States a different doctrine has been established.” (Id., 360.) And for that reason a creditor in the' United States may proceed to seize and appropriate the property of the debtor to the payment of his debts, when that may be found within the jurisdiction of any of the tribunals of this country, although he may have been discharged as a bankrupt by proceedings instituted and carried on elsewhere. (Saunders v. Williams, 5 N. H., 213.)

If the discharge of the bankrupt, obtained in the country of which he may be a resident at the time of the making of the contract, and where the proceedings themselves may be carried on, could. operate as a discharge of the debt, such an attachment or' seizure of the debtor’s property within the jurisdiction of the courts of this or any other State would not be permitted. It is only because the discharge is entitled to no extra-territorial effect that the creditor is at liberty to collect his debt in this manner out of the property of the bankrupt which may be found within the jurisdiction of the tribunals of the creditor’s domicil, when that may be different from the residence and domicil of the debtor. The view that the English rule concerning the effect of a bankrupt discharge has not been adopted in this country has been regarded as the law by Parsons in his work on Pills and Notes, for he considered that “the tribunals of England' differ in this respect from that of the continent of Europe, and from the rules laid down in the American cases.” (2 Parsons on Bills, etc., 360.)

While, therefore, the law of the place of the contract is in general terms to have the effect attributed to it as that has been already stated, still it is not entitled to be extended so far as to maintain the legality and effect of a foreign bankrupt discharge against creditors to whom the bankrupt may be indebted, who are at the time citizens and residents of this State. ' The English rule has been here so far abridged as to render the discharge itself inoperative against such creditors, and consequently the proceedings which have been relied upon; although they conformed to the English bankrupt act, in and of themselves constituted no defense for the reason that they were not binding upon the plaintiffs as creditors.

The plaintiffs not being bound by the bánkrupt proceedings were under no obligation either to prove their debt or to accept the composition projiosed to be paid by the acceptors of this bill. They did, however, voluntarily make themselves parties to the bankrupt proceedings by proving the debt now in suit and accepting the composition offered by the bankrupt, and in that manner, without being obliged so to do, they released and discharged the acceptors of this bill. In taking these proceedings they brought themselves within the authority of the case of Gardner v. Oliver Lee's Bank (11 Barb., 559). There the creditors in a similar manner made themselves parties to and received a portion of the debtor’s estate under insolvent proceedings carried on in tbe State of. Massachusetts. And as the creditor at the time resided in this State, and within the rule already mentioned was in no manner affected.by the insolvent proceedings under the statutes of Massachusetts, it was held to have deprived itself of its right to proceed against the drawer of the paper by having voluntarily made itself a party to those.proceedings and receiving the dividend which was paid under them. No reason can be perceived for distinguishing this case from the one now before the court. If the creditor deprived itself there of the right to recover against the drawer by voluntarily becoming a party to tbe proceeding and accepting tbe distributive portion of ‘the estate of the insolvent under it, the plaintiffs have done the same in this instance. This authority, in view of the facts as they have been, made to appear, must he regarded as decisive of their rights, and the result is that their application for a new trial must be denied and judgment ordered for the defendant on the verdict!

Davis, P. J., and Brady, J., concurred.

Motion for new trial' denied. Judgment ordered for defendant on verdict.

        Ante, page 363.


author: Davis, P. J.:

text:
      In the Matter of the Petition of GEORGE W. WELSH to Vacate an Assessment.

      Assessments — a provision for vaeaMng am assessment, when a pi'i/rr one has been paid, is not applicable where the aity owned the 'proparty at the time of the first assessment— 1872, chap. 580, see. 7. .

    The clause contained in section 7 of chapter 580 of 1872 excepting from the prohibition against vacating assessments for the causes therein mentioned, “cases of assessment for repaving any street or public place upon property for which an assessment has once been paid for paving the same street or public place,” does not apply to cases in which the property, at the time of the making and payment of the first assessment, was owned by the city, which paid the assessment and subsequently conveyed it to private persons.

      Appeal from an order made at a Special Term, vacating an assessment for flagging Third avenne.
    The assessment list was confirmed May 25,1869. The petitioner moved to vacate it upon the ground, among others, that a prior assessment for paving the same street had been laid upon the lots and paid. It appeared that an assessment for curbing, guttering and flagging Third avenue was laid upon the lots in question December 21, 1819, which was paid February 2, 1850. The lots were then owned by the city, which conveyed them to the petitioner in 1867.

      J. A. Beall, for the City of New York, appellant.

      Moody B. Smith, for the petitioner, respondent.
   Davis, P. J.:

This matter was disposed of by the Special Term solely on the authority of In re Phillips (60 N. Y., 16) The distinction between that case and the present is found in the fact that when the first assessment for laying a sidewalk was made and paid it was made against the city of New York, which was then the owner of the premises, and paid by that corporation. Afterwards the premises were sold by the city and conveyed to the petitioner. No private property holder had ever been previously assessed for any improvement of the kind. The city had simply flagged its own property, paying for it itself. It was its voluntary act and not a compulsory one and is not within the spirit of the statute which, as held by the Court of Appeals, was intended to compel the corporation to bear the expense of “ repaving a street which has once been paved by the compulsory proceeding of assessment against a private owner.”

The statute does not declare, nor do we think it was intended to do so, that if the city has voluntarily paved a street or flagged a sidewalk in front of its own property it shall, therefore, forever afterwards bear the whole expense of repaving or reflagging the same street or sidewalk when the property is sold to private owners. Such a construction is not within the spirit or intention of the statute, and is against public policy, inasmuch as it would exempt all the real estate of the city from the burden of sharing in the cost of public improvements when sold to private owners, because the city had seen fit to make at its own expense similar improvements while holding the title.

We think the order should be reversed, with ten dollars costs of the appeal, and the prayer of the petitioner denied.

Daniels, J., concurred.

Present — Davis, P. J., and Daniels, J.

So ordered.


author: Daniels, J.;

text:
    BOLTON HALL and Others, Appellants, v. THE UNITED STATES REFLECTOR COMPANY, Respondent.

      Practice — vpon a trial no defense can be proved, which has not been pleaded.

    Appeal from a judgment in favor of the defendant, entered on the report of a referee.
    The cause of action alleged in the complaint was the loan by the plaintiffs to the defendant, between the 1st day of November, 1880, and the 30th of April, 1881, of the sum of $25,736.67.
    The court at General Term examined the pleadings and evidence and held that the defendant had failed to prove any of the defenses it had pleaded. The referee .had, however, found certain facts which he held to constitute a defense to the action, though such defense had not been pleaded by the defendant in its answer.
    With reference to this the court at General Term said: “ But as these facts were not alleged or relied upon in any form in the answer by way of defense, they were not within the issues which the referee was empowered to hear and determine. They constituted a distinct and separate defense to which no allusion whatever was made in the defendant’s answer; and as the referee was only authorized to hear and determine the issues which the parties themselves had framed, he had no authority under which he could defeat the action upon the ground of a defense which the defendant itself had neglected to bring into the case. The -rule on this subject has become very well settled under the Code as it also was under the preceding practice. If the plaintiff is to recover, it must be upon the case as it is substantially embodied in the complaint; and if the defendant can succeed in defeating what otherwise appears to be a legal and valid claim it must be upon some denial or defense alleged in the answer. To avoid the possibility of surprise the law requires that each party shall be apprised substantially of the ground intended to be relied upon by his adversary in the course of the trial, when that may take placé. And when the pleadings fail to do that the party chargeable with the failure can derive no advantage from evidence appearing upon the trial, tending to. establish the existence of a cause of action or defense not included in his pleadings. (McKyring v. Bull, 16 N. Y., 297; Laraway v. Perkins, 10 id., 371; Brázill v. Lsham, 2 Kern., 9; Rubber Go. v. Ggodyear, 9 Wall., 788, 793; Wright v. Delafield, 25 N. Y., 266,270; Hudson v. Swan, 83 id., 552; South wick v. First National Bank of Memphis, 84 id., 420.)
    “As the case was presented the defenses relied upon by the defendant were, neither of them, proved, but the plaintiffs have been defeated in their right to recover the money loaned by them, by a defense to which there was no reference whatever in the defendant’s answer, and which they consequently could not anticipate and were not legally required to meet. The result is that the judgment under these* circumstances cannot be sustained.”

      Wm. B. Hornblower and Joseph S. Auerbach, for the appellants.

      Fdworrd P. Wilder, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., concurred.

Present — Davis, P. J., Beady and Daniels, JJ.

Judgment reversed and new trial ordered, with costs to abide event.


author: Davis, P. J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ERNEST DREVET, Respondent, v. THE BOARD OF FIRE COMMISSIONERS OF THE CITY OF NEW YORK, Appellant.

      Practice —power of the eowrt to consider the weight of evidence in proceedings by certiorari — Section 3140 of the Code of Oivil Procedv/re is not applicable to proceedings commenced prior to September 1, 1880.
    Appeal from an order of the Special Term, reversing the decision of the board of fire commissioners.
    . The court at General Term said: “ The Special Term, following the decision of this court in the People ex rel. Murphy, held that it had no power in this case to review the proceedings of the board on questions relating to the weight of evidence. The People ex reh Murphy v. French was subsequently affirmed by the Court of Appeals (92 N. Y., 306), and it settles that in proceedings by certiorari to review the acton of inferior tribunals, commended prior to September, 1880, section 2140 of the Code of Civil Procedure has no application. Such cases are governed by the law existing prior to the section of the Code cited talcing effect. As the law is now established by the Code the court is at liberty to review the evidence and proceedings upon consideration of the evidence, and to review the decision whenever it would feel. justified in setting aside a verdict upon the same evidence as against the. weight of evidence.” * * *

      George P. Andrews, for the appellant.

      Douglas A. Temen, for the respondent.
   Opinion by

Davis, P. J.;

Beady and Daniels, JJ., concurred»

Order affirmed, with costs.


text:
    ALEXANDER R. PHYFE, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Mmdence — measure of damages for loss of business, occasioned by plaintiffs being confined to Jiis house by reason of am injury to Mm resulting from, the defendants

    Appeal from a judgment, entered on a verdict of a jury, and from ah order denying a motion for a new trial, made upon the minutes of the justice before'whom the action was tried.
    This action was brought for the recovery of damages sustained by an injury to the plaintiff, received while attempting to enter a car of the defendant at one of its stations. The testimony on the part of the plaintiff showed that as he entered the cars while the-train was stopping at the station, the gate was shut against him and he was pushed by the brakeman so that he fell on the platform and sustained internal injuries which laid him up and kept him wholly from his business for some ten or twelve days, during which time his business suffered greatly from his absence; and that his injuries affected him more or less for some months afterwards, and were likely to continue so to do. On the subject of damages sustained by the plaintiff, by reason of inability to attend to his business during the period he was confined to his house, no proof of actual losses was given, but the plaintiff was permitted to show that the gold and silver in which he dealt was locked up in his safe; that he alone had the combination, and that neither of the four clerks in his -employment did or could have access to the gold, and that none was ■sold ; that several of his principal customers called to purchase, but were unable to do so in his absence, and that several customers were for that reason lost to him, they having subsequently gone elsewhere to make their purchases. The plaintiff was also permitted to show how much he had been accustomed to sell to those customers, and what profit he had made at sales occurring in intervals of a fortnight or so at different times in his business. This evidence was taken under objection and exception.
    The court at General Term said: “ It was of course competent for plaintiff to show that he had been rendered unable to attend personally to his business, and had thereby sustained losses, but we think some of the peculiar evidence in this case was altogether too conjectural and speculative to be the basis of a verdict.
    “ It was not shown that sales could not and would not have been made if the clerks had had access to the gold and silver shut up in the safe, and at just as good profits as though the plaintiff had been present. The loss of sales and of. customers was not caused by the injury sustained by plaintiff, but by his abnormal and peculiar mode of doing his business by keeping the valuables in which he dealt wholly inaccessible to the persons who conducted his business. Customers came to buy, but the plaintiff chose to keep his goods in his own hands because he could not be personally present to make the sales. He had a legal right to do that, doubtless, but not to charge the loss of such customers and possible profits to the defendants. His gold and silver remained on hand. No evidence was given to show that they had depreciated in value, or that his profits when he came to sell were any less than they should have been if the sales had been made in the usual course of his business to the customers who called. His commodities were articles not •likely to depreciate in value, and not subject to great fluctuations, but readily saleable to manufacturers of jewelry and other articles in which refined gold and silver are used. The evidence received gave scope to the jury to allow as actual damages profits of possible sales not made, because the plaintiff chose to keep the property on hand to be sold to customers when he could do the business personally. Under such circumstances he should at least have shown that when he came to make sales he sustained actual losses. It may be that he made greater profits; and if that were the case, still, if this evidence be a legitimate mode of proving damages, he is recovering, perhaps, where no loss was ever sustained. We think the court opened a wider door for conjecture on the part of the jury than any of the authorities have sanctioned.” * * *
    Dorshevmer, Bacon da Beyo, for the appellant.

      Samnél C. Courtney and Ira Shafer, for the respondent.
   Opinion by

Davis, P. J.;

Brady and Daniels, JJ., concurred.

Judgment reversed, new trial ordered, costs to abide event.


text:
    WILLIAM ROEBER, Respondent, v. PETER BOWE, as Sheriff, etc., Appellant.

      Mddence — what is sufficient to uphold a sale of goods though the vendm' remains in possession — deelm'ations of the vendor as to his reasons for making the salé— when they are admissible as against the vendee.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The court at General Term said: “ The verdict.was recovered for the value of a stock of goods which the defendant,' as sheriff, levied upon and sold under an execution issued upon a judgment recovered by James S. Carpenter against George W. Carpenter. Before the action was commenced the judgment debtor by a bill cf sale sold the stock of goods to the plaintiff in this action. But the property was levied upon and afterwards sold by the sheriff upon the allegation that the sale to the plaintiff was made to hinder, delay or defraud creditors, aud in support of that position it was made to appear -that no actual or continued change of possession of the property sold was made after the sale, but the vendor continued in the store carrying on the business, in the employment of the plaintiff, for the compensation of twelve dollars a week. This, under the direct terms of the statute,, rendered the transaction presumptively fraudulent. But to remove that presumption evidence was given tending very directly to prove that the plaintiff, when he bought out the stock of goods, paid their full and fair valué for it to the judgment debtor, and that he himself maintained a constant oversight of the business, although'in its general transaction he retained the debtor in his employment. This was sufficient to entitle the plaintiff to have the point submitted, as it was, to the jury to determine as a matter of fact whether the sale had been made in good faith notwithstanding the continued possession of the vendor. The case of Tifft v. Burton (4 Denio, 171),- which was held not to have been properly submitted to the jury, is distinguishable from the present one by the circumstance that in that case there was no evidence of a consideration having been actually paid, while in this case the evidence was reasonably clear that the plaintiff had paid more than the full value of the goods constituting the stock in the store; and under that evidence the case was made a proper one for the jury to determine- whether or not the sale had been made in good faith without any fraudulent intent. (Starin v. Kelly, 88 N. Y., 418.) * * *

      “ The judgment creditor, in the course of his examination as a witness, was interrogated as to statements which the debtor had made to him concerning his title or interest in this stock of goods, and the court limited the inquiries to conversations at the store while Carpenter was acting there. What was said at the store the defendant was at liberty to prove, but what was said elsewhere was excluded.
    “ This ruling is now relied-upon as erroneous under the authority of Adams v. Davidson (10 N. Y., 809). There the debtor, who was left in the possession of the goods after he had made a general assignment, stated that one object of it was to coerce other persons to become his security on an appeal, in which event it was to become ■ void. This statement was allowed to • be proved for the reason that the assignor remained in the possession of the goods up to and after the time the declaration was made. But whether it was made while the assignor was actually in the store does not' clearly appear from the case. Proof of the declaration was received upon the authority of Willies v. Farley (3 Carr. & P., 395). That was a nisi jprius decision in which proof was received of a statement made by the defendant in a second execution, that a preceding execution had been sued out to protect the goods against a levy under the second. This statement is not shown by the case to have been made at a time or place when the defendant was not in the immediate charge of the goods, and for that reason it may very well have been proper evidence explanatory of the fact of his continued possession, although the property had been in form levied upon under another execution. If evidence of this character can be legally and properly received in any case it would seem to be because of the circumstance that the vendor is at the time in the actual possession of the property. As such he holds it ostensibly as the agent of the vendee, and it is only when the agent may be in the performance of some act within the range of his agency that what he may say can be given in evidence against his principal. And this rule will not include mere statements or declarations casually made by the ostensible agent when he is neither actually nor constructively performing any act in the course of his agency. This was further considered in Tilson v. Terwilliger (56 N. Y., 273). . And the preceding case of Adams v. Davidson seems to have been limited in this manner, and to require that the declarations proposed to be given shall appear to accompany some act of which they are made explanatory. And the rule allowing them to be given, even when that may be their character, to impeach a sale of property previously made, does not seem to be quite consistent with the principle which has been applied under like circumstances of continued possession when the subject of the sale has been real instead of personal property.” (Vrooman v. King, 36 N. Y., 477.)

      A. J. Vanderjpoel, for the appellant.

      Edward P. Wilder, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., and Brady, J., concurred.

Judgment and order affirmed.


author: Daniels, JJ.;

text:
    Susannah L. Dorland, as Administratrix, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

   Judgment affirmed. Opinions by

Brady and

Daniels, JJ.;

Davis, P. J., dissenting.


author: Davis, P. J.,

text:
    John L. Melcher, Executor, etc., Appellant, v. George E. Harding, Respondent.

   Order modified as directed, with ten dollars costs and'disbursements to abide event. Opinions by

Davis, P. J.,

Brady and Daniels, JJ.


author: Brady, J.

text:
    In the Matter of Juan R. M. Hernandez.
   • Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


author: Brady, J.-

text:
    John Fischer, Appellant, v. J. C. Julius Langbein and another, Respondents.

   Judgment affirmed. Opinion by

Brady, J.-


author: Brady and Daniels, JJ.;

text:
    The People of the State of New York v. James Lane.
   Judgment reversed, new trial ordered. Opinions by

Brady and Daniels, JJ.;

Davis, P. J., dissenting.


text:
    Horace K. Thurber, as Assignee, etc., Respondent, v. Robert B. Minturn, Respondent, and The North River Bank, in the City of New York, Appellant.

   Judgment reversed and judgment ordered as directed in opinion. Opinions by

Davis, P. J.,

Brady and Daniels, JJ.


author: Brady, J;

text:
    John C. Boyd, Respondent, v. Richard H. Ellis, Appellant.

   Judgment affirmed, with costs. Opinion by

Brady, J;


text:
    Saxon E. Anderson v. David B. Jarvis.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Henry Blumenthal, Respondent, v. Lyman G. Bloomingdale and another, Appellants.

   Judgment affirmed. Opinion by

Brady, J.


text:
    The Oregon Steamship Company, Respondent, v. George K. Otis, Appellant.

   Judgment modified as directed in opinion, and affirmed as modified. Opinion by

Brady, J.


author: Daniels, J.

text:
    The People of the State of New York v. The Empire Mutual Life Insurance Company.
   Order modified as directed in opinion, without costs to either party, and affirmed as modified. Opinion by

Daniels, J.


author: Daniels, J., and Davis, P. J.

text:
    Philip Ebaling and another, Respondents, v. Paul Bauer, Appellant.

   Judgment and order affirmed. Opinion by

Daniels, J., and Davis, P. J.


text:
    The Baltimore and Ohio Railroad Company, Respondent, v. Alexander T. Arthur and another, Appellants.

   Appeal dismissed, with ten dollars costs. Opinion, by

Daniels, J.


text:
    John Van Roy, Respondent, v. Clara Morris Harriot, Appellant.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    J. C. H. Claussen, Respondent, v. Charles H. Russell, as Receiver, etc., Appellant.

   Judgment reversed and order entered sustaining demurrer, with leave to plaintiff to amend in twenty days on payment of costs of appeal and of demurrer. Opinion by

Daniels, J.


text:
    Catherine Hancox, Appellant, v. Samuel M. Meeker, Respondent.

   -Decree affirmed, without costs. Opinion by

Daniels, J.


text:
    George Frazier, Appellant, v. The Mayor, etc., of the City of New York, Respondent.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    Howard Ives, Respondent, v. Henry B. Lockwood, Appellant.

   Order reversed and motion granted, with costs and disbursements. Opinion by

Daniels, J.


text:
    In the Matter of Adelaide Clement.
   Order affirmed, without costs. Opinion by

Davis, P. J.


text:
    The People of the State of New York ex rel. Emeline Austin and others v. Edward Cooper and others, Respondents.

   Proceedings affirmed, with costs and disbursements. Opinion by

Daniels, J.


text:
    Adelaide R. Kenny, Respondent, v. Edwin A. Weed and George Chandler, Appellants.

   -Order affirmed,-with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Bolton Hall, Respondent, v. United States Reflector Company, Appellant.

   Appeal dismissed, without costs.


text:
    Lazarus S. Murad, Appellant, v. Elias R. Thomas, Respondent.
   Appeal from order discharging defendant on habeas corpus dismissed,, with out costs.


text:
    George Whittaker, Respondent, v. Joseph M. Valentine and another, Appellants.

   Judgment modified as directed in opinion, and as modified affirmed, without costs to either party. Appeal from order allowing amendment to complaint dismissed, and that from order denying application for resettlement affirmed, with costs and disbursements. Order to be settled by Daniels, J. Opinion by

Daniels, J.


text:
    Hannah Mead, Administratrix, Appellant, v. Lucretia C. Smith, Respondent.

   Judgment affirmed, with costs of appeal, but only as of one argument. Opinion by

Davis, P. J.


text:
    Charles C. Bryce and another, Respondents, v. August C. L. Meyer and another, Appellants.

   Judgment and order affirmed. Opinion by

Davis, P. J.


text:
    William O. Cook, Respondent, v. Theodore M. Leonard, Appellant.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    Charles W. Pierce, Jr., and others, Appellants, v. Charles Bouton, Respondent.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


text:
    Luciano Rinz and others, Plaintiffs, v. Charles Renauld and others, Defendants.

   Motion for new trial denied and judgment ordered for plaintiffs on verdict. Opinion by

Davis, P. J.


text:
    Mary L. McKenna, Administratrix, Appellant, v. Thomas Bolger, Respondent.

   Judgment reversed and judgment on demurrer ordered for plaintiff, with leave to withdraw demurrer and answer on usual terms. Opinion by

Davis, P. J.


text:
    Mary L. McKenna, Administratrix, v. Thomas Bolger.
   Motion denied, with ten dollars costs. Opinion by

Davis, P. J.


author: Davis, P. J., and Brady, J.;

text:
    Ann Mallach, Respondent, v. Edward Ridley and others, Appellants.

   Judgment reversed, new trial ordered, costs to abide event. Opinions by

Davis, P. J., and Brady, J.;

Brady, J., concurring in result.


text:
    Virginia B. Matthews, Appellant, v. Kenneth M. Marchison and others, Respondents.

   Judgment modified as directed by opinion on payment of costs of opposing motion below, without costs of appeal to either party. Opinion by

Davis, P. J.


text:
    Elizabeth B. Stewart and another, Respondents, v. William M. Brasher, Appellant.

   Judgment reversed, new trial ordered, costs of appellant to abide, event. Opinion by

Davis, P. J.


text:
    Samuel Weeks and another, Respondents, v. Jacob Weeks Cornwell, Appellant.

   Judgment modified as directed in opinion, and as modified affirmed, costs of all parties to be paid out of fund. OD-inion by

Davis, P. J.