text:
    THE TRUSTEES FOR MANAGEMENT AND CARE OF THE FUND FOR THE SUPPORT OF THE EPISCOPATE OF THE DIOCESE OF CENTRAL NEW YORK, Respondents, v. FRANCIS COLGROVE and LOUISE COLGROVE, Infants, by Guardian, Impleaded, etc., Appellants.

      Will—bequest—uihat is sufficient description of benefidwry — latent a/mMgmty.— parol evidence to explain.

    The defendants’ testator by his will authorized his executors “ to pay over to the officers of the Protestant Episcopal Church, into the fund to support "the episcopacy of said church,” certain moneys therein specified. The plaintiffs were at that time, and still are, trustees for the management and care of a fund for the support of the diocese of central New York, having been incorporated for that purpose under chapter 439 of 1868; at the time of making his will the testator knew of the existence of the said corporation, and of the fact that exertions were being made to increase the said fund. Eeld, that the plaintiffs were entitled to the bequest.
    It appeared upon the trial that there were four other dioceses in the State of New York, besides the diocese of central New York, having, respectively, trustees and a fund held by them for the support of the episcopate, to either of which the terms of the bequest were applicable. Eeld, that this was a case of latent ambiguity, and that parol evidence and statements of the testator were admissible to show that he intended to bequeath the money to the plaintiffs.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court, without a jury.
    This was an action in equity, brought to obtain an adjudication of a will made by John Carr, deceased, late of Trumansburgh, in Tompkins county, in this State, who died in January, 1872, leaving a last will and testament, of which the following is the sixth article or subdivision:
    “ Sixth. I give, devise and bequeath to my executors hereinafter named, my farm in Ulysses, upon which I now reside, in trust to sell the same at such time and for such price as shall seem to them meet, and give regular conveyance for the same, with or without a covenant of warranty, and from the proceeds and securities taken and received for the same, the said executors are hereby authorized to pay over to the officers of the Protestant Episcopal Church, into the fund to support the episcopacy of said church, so much only of said proceeds of the said farm, and to include the said $9,000 given to the Episcopal Church of the Epiphany in Trumansburgh, and the sum of $500 hereinafter given to the Methodist Episcopal church of Jacksonville, as shall be and make one equal half of my whole estate, and no more.”
    The complaint also sought for an accounting of the executors of said will, and a judgment directing payment to the plaintiffs of the said legacy so given by said will to the officers of the Protestant Episcopal Church, for the support of the episcopacy of said church.
    .On the trial, the plaintiffs gave evidence showing that they were trustees for the management and care of a fund for the support of the episcopate of the diocese of central New York, comprising fourteen counties of said State, among others the said county of Tompkins, and that they were duly organized as a corporation for that purpose, under an act of the legislature of this State, entitled, “An act to provide for the incorporation of trustees for the management and care of certain funds now held for the Protestant Episcopal Church, in the diocese of western New York,” passed April 28, 1868 ; and they gave other evidence tending to show that the plaintiffs were entitled to receive and recover said legacy; and the judge so held and decided, and directed an accounting by said executors, to ascertain the amount which would be payable to the plaintiffs under said will.'
    From this order the defendants duly appealed to this court.

      George N. Kennedy, for the appellants.

      George F. Comstock, for the respondents.
   E. Darwin Smith, J.:

The findings of the learned judge who tried this cause at Special Term, fully warrant his conclusions upon the law, and the order directed by him. The findings, among other things, state: “ That, at the time of the making of said will, there was, and now is, appertaining to the diocese of central .New York, a fund for the support of the bishop of said diocese and his successors in office, known as the fund for the support of the episcopate of said diocese, which said fund consists of about $60,000 of invested capital, and is, and since its creation has been, in the custody and care of the incorporated body of trustees, who are plaintiffs in this action. The income of said fund is not sufficient to pay the salary of the bishop, and, at the time of the making of said will, an organized effort was being made in the diocese for the increase of said fund. The fact last mentioned was known to the said testator. That the said John Carr [the testator], in and by the sixth clause of his will, in fact intended to give the legacy therein mentioned to the plaintiffs in this action, for the augmentation and increase of the fund for the support of the episcopate.” And as a conclusion of law he held and found that the said legacy was valid and belonged to the plaintiffs, and they were entitled to recover the same.

The first objection arising upon the defendants’ exceptions to the findings of the judge, is, that the plaintiffs are not officers of the Protestant Episcopal Church, but trustees of a fund existing for the purpose of supporting the bishop, and that the bequest is to be paid over “ to the officers of the Protestant Episcopal Church.” It is true that the bequest is not made to the plaintiffs by their corporate name, but this is not essential if the language of the will sufficiently describes them by their character, office or duty. All that is requisite in this connection, is such a specification or description of the object of the bequest or legacy, as will show the intention of the testator. (Wigram on Wills, 108 ; Hawkins on Wills, 9,10; Thomas v. Stevens, 4 Johns. Ch., 607; Connolly v. Pardon, 1 Paige, 292; Stephens v. Powys, 1 De G. & J., 24.) Legacies to corporations frequently mistake the true corporate name, but this will not invalidate when the intent is clear. The identity of the party in a deed or will is always provable by parol. The bequest was not only given to the officers of the Protestant Episcopal Church, but, to make more sure in respect to the persons to take such bequest, the words are added, “ into the fund to support the episcopacy of said church.” The plaintiffs are the trustees of such a fund, and they are included in the general description of the officers of the said church in connection with such.fund. The intent obviously was to give it to the fund named in charge of the proper officers acting for the church or diocese in charge of such fund. The terms used are descriptive of the plaintiffs with as much accuracy as will probably occur in most cases in wills where legacies are given to charitable or benevolent societies? institutions or corporations. Wills, in many, and perhaps in most cases, are drawn in haste, and when there is not time or opportunity to learn the true name of the legatee, and courts are bound to give effect to the intention of the testator, if it can be ascertained, and see that his will is not defeated by narrow technicalities.

But it is objected further, that the payment is to be made into the fund to support the episcopacy,” and the testator may have intended that the fund be used and applied for the general purposes of the church, and not particularly for the support of the bishop of any particular diocese. If the language of the will were in form that-said legacy should be used or paid to any persons or officers to support episcopacy in general terms, it would doubtless be liable to the objection urged. Episcopacy, in such sense, would apply alike to all churches which have the episcopal form of church government. Webster defines episcopacy as a “government of a church by bishops or prelates ; that form of ecclesiastical government in which diocesan .bishops are established as distinct from and superior to priests or presbyters; government of the church by three distinct orders of ministers, bishops, priests and deacons.” Such, doubtless, is the general sense or meaning of the word episcopacy, as commonly used and understood in this country and in Europe. This description of episcopacy would include, as the proofs clearly show, the Protestant Episcopal Church in this State and country, and these words necessarily limit and restrict the claim to this legacy to that church. And the language of the will does not make the bequest payable for the general support of the church on the ground that it is episcopal, and that in that sense it would support episcopacy. That clearly was not the intent of the testator. The bequest was to go into, that is to say, the proceeds of the said bequest were to be paid into, the fund for the support of the episcopacy of said church. This is precise and clear. The bequest is to be used and applied to increase or to be added to a fund already in existence, held by officers of the church for the support of the episcopacy of said church, that is, for the support of the order of bishops in said church. The word episcopacy in this bequest, is .obviously used in the restricted sense, as synonymous with episcopate.

It is urged that there are in said diocese several other funds : a general fund, a missionary fund and a parochial fund, to which the words of the bequest might apply, as funds whose use was designed for the general objects of the church, and in this sense for the support of the episcopacy; but the terms of the bequest cannot apply to these funds, for they are neither created, designed nor held in trust for the support of the episcopacy of the church. The terms of the bequest, it seems to me, apply to the plaintiffs expressly, and that they are embraced within its design and particular description.

The next point presented by the defendants’ counsel for consideration, arises upon the proof that there are four other dioceses in the State of Hew York, beside the diocese of central Hew York, having respectively trustees and a fund held by them for the support of the episcopate, to either of which the terms of this bequest may be applied, and will apply as well, and equally so, as to the plaintiffs. This is doubtless so upon the face of the evidence, but this fact presents simply a case of latent ambiguity, in respect to which the rule is, that, inasmuch as the ambiguity is raised by extrinsic evidence, so it may be removed in the same manner. (Broome’s Legal Maxims, 614; Bacon Legal Maxims, 90 ; Wigram on Wills, 107, 185, 232; Hawkins on Wills, 9, 10.)

The evidence received by .the judge on the trial, directed to show the intention of the testator in making such bequest, and that such intention was to devote the proceeds of said bequest to the support of the episcopate of and in the diocese of central Hew York, I think, was all properly received: Extrinsic evidence is always admissible to show the situation of the testator, his family and his property, and of the existing and surrounding circumstances at or about the time of the making the will, and in aid of the construction of such will; and also declarations and acts of his, indicative of the purpose of his mind in respect to the will, or in respect to the legatees mentioned therein; and declarations not cotemporaneous with the will, may also be received as evidence of the intention of the testator. (Doe v. Allen, 12 Ad. & Ell., 451; 40 E. C. L.) It appears that the testator was a communicant in the Episcopal church at Trumansburgh, the place of his residence; that he knew the bishop of that diocese, and had heard him preach in such church upon one of his visitations to that parish, and had been introduced to him; and that he knew that an effort was making in the diocese to increase the fund for the support of the episcopate in said diocese, and that upon being visited by the rector of such parish, a day or two before his death, he put to him the questions following: “Are they not trying to raise a fund for the support of the bishop?” To which the minister replied: “Yes, sir; we are.” And the said minister then further said to him : “ If you are intending to leave a legacy toward church objects, I wish you would not forget our parish at Trumansburgh, for we are intending to build a new church there.” To which the testator replied: “I intend to do something for that too.” In his conversation with his attorney who drew the will, at the time when he gave instructions in regard to the will, he mentioned the name of Bishop Huntington, and said he had seen him once at Trumansburgh ; and he also said, speaking of the clause which was in his own language in regard to episcopacy: “ That was to go into this fund; he said there were officers or men who had charge of a fund to support the episcopacy of that church.” This evidence was admissible within the seventh proposition stated in the introduction to Wigram on Wills (O’Hara’s 2d Am. Ed., p. 57) as follows: Courts of law in certain cases admit extrinsic evidence of intention, to make certain the person or thing intended, when the description in the will is insufficient for the purpose.” Also (at page 50), he says : “ Evidence of intention is admissible to identify the subject or object of a gift.”

The current opinion of the courts in this country is tending very clearly to greater liberality in receiving extrinsic evidence to aid in giving a construction and effect to wills, and show what property was intended to be devised, and what person was intended to take, as indicated by the following cases : Howard, Executor, v. American Peace Society (49 Maine, 288); Winkley v. Kaime (32 N. H., 268); The Domestic and Foreign Missionary Society appeal (30 Paine, 425); Button v. American Tract Society (23 Vermont, 336); Du Bois v. Ray (35 N. Y., 162); Pond v. Bergh (10 Paige, 152). Within the principle asserted in these and other cases, the extrinsic evidence taken at the trial was properly received in aid of the construction of this will, and was sufficient in connection with the will to warrant the finding of the learned judge, that the testator, as matter of fact, in and by the said sixth clause of his will, intended to give the legacy therein mentioned to the plaintiffs in this action for the augmentation of the fund for the support of the episcopate.

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

Present — Mullin, P. J., Smith and Morgan, JJ.

Morgan, J., did not vote.

Order affirmed.


source: Caselaw Access Project

author: E. Darwin Smith, J.:

license: Public Domain

text:
    LEVI HOTCHKISS, Respondent, v. NATHAN ENGLISH, Impleaded with J. C. CUMMINGS and others, Appellant.

      Promissory note — a/uthority to indorse—if not known to indorsee, and if parties do not hold themselves out as partners—liability where authority is exceeded,.

    Defendant English, being the owner of a patent right, entered into an agreement with the defendant Perine, by which Perine was, at his own cost and expense, to sell the said right; the proceeds of such sale to be divided, share and share alike. The agreement further provided that all notes should be taken payable to the order of English & Perine, and authorized Perine to sign the name, if necessary, of English & Perine in transacting the business or anything incident thereto, and for the purpose of converting such notes into cash or other securities. Perine, without any consideration, indorsed a note of a third person with the name of English & Perine, intending thereby to defraud English. The plaintiff purchased the note in good faith for full value and before maturity. English & Perine had never held themselves out as partners, nor did plaintiff know of the agreement entered into between them at the time of purchasing the note. Held, that the agreement did not authorize Perine to indorse the note in English’s name, and that the latter was not liable thereon.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The action was on a promissory note made by one J. C. Cummings, payable five months after date, for $350, to the order of English & Perine, two of the defendants. The defendant English alone defended and appealed from the judgment. The referee found as matter of fact, that the said Cummings signed said note at the instance of one Belden, who paid him two dollars for signing the same, and that one of the defendants (Perine) indorsed said note in the name of English & Perine, and delivered the same to said Belden, without any consideration, and that said Belden delivered said note to one Spaulding, who transferred it to Mills, one of the defendants, who transferred it, before maturity, to the plaintiff, who paid for it full value and consideration, and became a bona fide holder thereof without notice of the circumstances under which it was made.
    The defense was that Perine had no authority to indorse English’s name upon the note, and that he did so in pursuance of a conspiracy to cheat and defraud him. It. was claimed that Ferine had such authority by virtue of the following agreement:
    “ An agreement made and entered into this 8th day of January, 1.872, between Nathan English of the town of Greece, Monroe county, New York, of the first part, and M. B. Ferine of Nunda, Livingston county, New York, oí the second part, wituesseth:
    “ That whereas the said Nathan English is the owner of a certain patent right known as Sipner’s & Hooper’s Fatent Fadlock, for the following counties, to wit: Allegany, Cattaraugus, Chautauqua, Livingston and Monroe, in State aforesaid. Now, therefore, the said English hereby agrees to engage in the sale of the said patent right with said Ferine upon the following terms and conditions, viz.: The said English to furnish said patent, and the said Ferine agrees to do all the work and labor to sell the same of the said territory, and to sell said patent right to the extent of said territory, or so much thereof as he can sell, thq said counties not to be sold for less than $300 cash, or negotiable promissory notes, payable in cash. The said Ferine agrees to bear all expenses of and attending such sales, and in consideration of such labor and furnishing such expenses the same are to offset against the said patent right, and the proceeds of such sales are to be divided share and share alike, i. e., each to have one-half thereof. If notes are taken, the same are to be payable to the order of English & Ferine, and the said Ferine is authorized to sign the name, if necessary, of English & Ferine in transacting said business or anything incident thereto, and also to the end that said notes, if taken, may be converted into cash or other securities.
    “Witness the hands and seals of the respective parties this 8th day of January, 1872.
    “NATHAN ENGLISH, [l. s.]
    “M. B. FERINE.” [l. s.]
    The referee held, as a conclusion of law, that the plaintiff was entitled to recover of the defendants the amount of said note, the sum of $395.25, besides costs, and ordered judgment accordingly.

      A. J. Wilkin, for the appellant.

      S. H. Terry, for the respondent.
   E. Darwin Smith, J.:

The promissory note upon which this action was. brought was confessedly conceived in conspiracy and fraud, and was made and indorsed and put in circulation to deceive and to cheat. Passing apparently through a number of hands privy more or less to the fraud, or aware of the dishonesty of the transaction, it finally reached the hands of the plaintiff, who took it upon untrue representations in regard to it, but for a .good consideration, and without notice of the circumstances under which it was made and put into circulation. The question is, whether the defendant English, who was the purposed victim of this conspiracy and fraud, who never, in person, signed or saw said note, or heard of its existence till he received notice of protest for its non-payment, is cut off from all defense to it on the ground that the plaintiff has thus acquired the rights of a bona fide holder thereof.

In the cases in which it has been held (and they are very numerous) that the holder of negotiable commercial paper, received before maturity in the ordinary course of business and for full value, is protected from almost every species of defense except that the instrument was void by statute, the paper had upon its face the genuine signature of the maker or indorser, or party sought to be charged. Such was the case of Chapman v. Rose (56 N. Y., 137).

In Whitney v. Snyder (2 Lans., 477), and Foster v. Mackinnon (L. R. [4 C. P.], 704), in which it was held that when the party did not intend to execute a promissory note, but a different instrument, if guilty of no laches or negligence he was not bound, the paper upon its face bore the genuine signature of the defendant.

The referee finds in this case that said note was indorsed by the defendant Perine, in the name of English & Perine, and delivered by him to Belden. He does not find that English and Perine were partners, but his findings for the plaintiff upon the law were doubtless made and based upon that assumption, upon his construction of the agreement set out in his report. This agreement does not constitute them partners. It is rather a power of attorney from English to Perine, to sell his patent right in the five counties named, with a provision to account to him and pay him half the proceeds of sales as a compensation for his services, with a special power to convert the notes, if any were received on sales, into money by indorsement for that purpose. These parties never held themselves out to the public as partners, never did any business in a partnership name, and the fact of the making of this agreement was probably known only to the parties and to the persons concerned in getting up this note, and such persons as they may have communicated it to in furtherance of the scheme of fraud. The plaintiff testified that the defendant Mills informed him, when he transferred to him the said note, that English and Ferine were partners in the manufacture of agricultural implements, which was an untrue representation. It.is therefore clear that both the plaintiff and Mills, who are the only persons who as the holders of this note can have any pretense to be bona fide holders of it, did not take it with any knowledge of an actual partnership in fact between English and Ferine, or upon any reputation of an actual partnership between them, based upon any acts or business of theirs, or derived from any holding of themselves out as partners to the public.

. Where partners have been held liable upon negotiable paper fraudulently made or indorsed by one of the firm, the fact of the existence of such partnership has. ordinarily been undoubted and notorious. In such cases any person of the vicinity might very properly receive the partnership paper, upon the presumption that it was lawfully made and in the legitimate business of. copartnership. This presumption very reasonably protects the bona fide holders of partnership paper from any defense by the defrauded partners. But this principle will not protect the holder of negotiable paper, apparently made or indorsed by a copartnership against the forgery of such paper; and such I think the true defense to this note. Assuming that the contract between English 'and Ferine, for certain purposes, constituted them partners as between themselves, neither of them had any authority to make promissory notes, or to indorse such notes in-their joint names, except as expressly stipulated in said agreement.' The indorsement of the name of English and Ferine upon this paper was and is a simple forgery. Ferine had no authority to make such indorsement. They weré not general partners. Said note was not given or received in any partnership business. The. said.. agreement; simply authorized Perine to indorse notes received on the sale of patents. He had sold no patents. He did not receive this note on the sale of any patent or other consideration. He made the indorsement without the slightest pretense of right, to cheat and defraud English. At most he was the agent of English, under a special power to indorse particular notes.

In Parsons on Bills (vol. 2, 593), he says: “ Authority to draw, make, or indorse a bill, may, of course, be given to an agent. When the agent signs the name of his principal without authority and with a malicious intent, it is a forgery.” That is precisely this case. Bishop on Criminal Law (vol. 2, § 528) defines forgery as follows: Forgery is the fraudulent making of a false writing, which, if genuine, would be apparently of some legal efficacy.” (4 Black. Com., 247; Rex v. Taylor, 2 East P. C., 852, 853.) The false making of a note or other instrument is forgery. (Rex v. Parks, 2 Leach [4th ed.), 775, 785 ; 2 R. S., 693, § 33.) Here was the making of a false indorsement, which was equivalent to making a false instrument with intent to defraud, etc. (Rex v. Hart, B. & H. Lead. Crim. Cas., 468.) This is a false signature made with intent to deceive,” which is the precise case stated by Justice Eyre, in Rex v. Taylor (supra), and cited with approval in The People v. Fitch (1 Wend., 200).

The judgment should be reversed and a new trial granted, with costs to abide the event.

Present—Mullin, P. J., Smith and Morgan, JJ.

Judgment reversed, and new trial granted, costs to abide event.


author: E. Darwin Smith, J.: Mullin, P. J.:

text:
    CAROLINE W. CAMP, Plaintiff, v. ASHBEL H. BARNEY, Defendant.

      Beceiver of railroad—personally liable for his own misconduct—not for -negligence of employes—Action against—amendment of judgment on appeal.

    This action was brought against the defendant, who was operating and managing the Buffalo, Cony and Pittsburg railroad, as a receiver duly appointed by the United States District Court, to recover damages for personal injuries sustained by the plaintiff while traveling as a passenger on the railroad. Upon appeal from a judgment recovered Toy the plaintiff upon the trial of the said action, held, that the record and proceedings should be modified so as to make the judgment against the defendant as receiver only, and not against him personally, and that, as so modified, it should be affirmed.
    If, in such case, a receiver desires the protection of the court by which he was appointed, he must apply thereto for an injunction, and in case he fail so to do, the action at law may proceed as though permission to bring the same had been received from such court. (Per Smith, J.)
    A receiver is personally liable to persons sustaining loss or injury by or through his own neglect or misconduct; but for the neglect or misconduct of those employed by him in the performance of the duties of his office, he is only liable in an action brought against him as receiver, and any judgment recovered therein must be made payable out of funds in his hands as such receiver. (Per Mullin, P. J.)
    Motion for a new trial, on exceptions taken at the Circuit and ordered to be heard at the General Term in the first instance. The ■ action was brought to recover' for personal injuries received by the plaintiff while she was being transported from the town of Brock-ton, in this State, to the town of Corry, in the State of Pennsylvania, upon a railroad between said places, operated by the defendant. The plaintiff recovered a verdict at the Circuit of $1,250. The defendant was operating and managing said railroad as a special receiver of the Buffalo, Corry and Pittsburg railroad, in bankruptcy, duly appointed by the District Court of the United States for the northern district of New York.

      E. C. Sprague, for the plaintiff.

      Sherman S. Rogers, for the defendant.
   E. Darwin Smith, J.:

By the order appointing the defendant receiver, he was vested with all and singular, the estate, franchises, property and effects, of every name and nature and description, belonging to the Buffalo, Corry and Pittsburg Railroad Company; and he was authorized to employ such assistants, operatives, mechanics, laborers and firemen as. he might deem necessary; to purchase supplies; to borrow or hire such rolling stock, and make such running arrangements into connecting lines, as he should deem necessary; and to operate the railroad of said company from Brockton to Corry; and that he have all the usual powers of receivers in like cases, as provided by the rules and practice of said court. At the close of the evidence in the case, the counsel for the defendant requested the court to decide, that inasmuch as the defendant was operating said railway as receiver only, and pursuant to the order aforesaid, he could not be made personally liable in this action for the injuries received by the plaintiff. The court refused so to decide, and the counsel duly excepted. The court then charged the jury that the defendant should be held in this action to the ordinary liability of a common carrier of passengers by railroad, and also that the defendant was to be treated in this action as if the defendant, at the time of the injury, had been carrying on said railroad for. his own personal benefit and advantage. To both these propositions, the defendant’s counsel duly excepted. These exceptions all present substantially the single point, whether the defendant, being in fact a receiver of said railroad, can be held personally liable to the plaintiff for the injury for which this action w;as brought. ISTo reasonable doubt, I think, can exist, if the action had been brought against the defendant as receiver, by leave of the court appointing the defendant such receiver, that the action could be maintained. This point was distinctly decided by the Supreme Court of Ohio, in the case of Mears, Administrator, v. Holbrook et al., Receivers, etc., of the Columbus, P. and I. R. R. Co. (20 Ohio, 137). It was there held that the receivers were the governing power operating said railroad, and the only persons having authority to employ, direct, control and dismiss the various agents employed by them to operate said railroad, and that the various employes of the said receivers were their servants and agents, and they were responsible for injuries resulting from their negligence in the discharge of their duties assigned to them respectively. The ruling at the Circuit was doubtless made upon the ground that the defendant, being thus the acting, directing and governing power in operating said railroad, and the only tangible principal known to the public, the plaintiff had a right to hold him responsible for the discharge of the duty of the common carrier in respect-to her, as assumed when he received her money in payment for her safe transportation over said railroad, and that the contract was formally and nominally with him personally. This view of the defendant’s liability is held in several cases in the Supreme Court of Vermont. In the case of Blumenthal v. Brainerd et al. (38 Vt., 407), the defendants were operating the Vermont Central and Vermont and Canada railroads, as receivers, under the appointment of the Court of Chancery of that State, and claimed, as the defendant does in this ease, that they were only liable to account as officers of that court. The court held that the mere fact that the defendants were acting as receivers under the appointment of the Court of Chancery, could not be recognized as a defense to a suit at law for a breach of any duty or obligation which was assumed by them while acting as such receivers, and referred to the case of Sprague v. Smith (28 Vt., 425), where it was held that trustees operating a railroad and exercising its franchises, were responsible for the negligence of the operatives under their control. The same doctrine, in respect to trustees operating a railroad, was held in Rogers v. Wheeler (43 N. Y., 602; S. C., 2 Lans., 486); and in Ballou v. Farnum (9 Allen, 47). Executors and administrators also are personally liable upon all contracts made ffiy them after the death of the testator. (Ferrin v. Myrick, 41 N. Y., 315.) Receivers stand in the same general position with other trustees having an independent power of control in the affairs of business, and are primarily responsible for their affirmative acts and neglects and contracts, and for the negligence of those inctheir employ. The only exception in favor of receivers, or distinction between them and other trustees, is, that they are and officers of the court appointing them, and are under its control and protection. But this protection is only accorded to them on their own application, and is granted or refused by the court appointing them in its discretion, depending upon the circumstances of each case, as is held in the case of Blumenthal v. Brainerd (supra); Story’s Equity, 833; and Parker v. Browning (8 Paige, 388); Angel v. Smith (9 Vesey, 336). The ease of Morse v. Brainerd et al. (41 Vt., 551), illustrates and confirms this view. In that case an action at law was commenced against the defendants,'' who were in fact receivers, for the loss and damage sustained by injury to a carload of cattle transported over the road in charge of the said defendants as such receivers. That action was restrained by injunction from the Court of Chancery, and the cause of action was brought into that court and disposed of by a reference to a master. This was upon the assumption that it was no defense at law, that the defendants were officers appointed by and acted under the authority of the Court of Chancery. If the receiver in such case, seeks the protection of the court by which he was appointed, he must, in proper form, invoke such protection by injunction; and it follows I think, in such a ease, that if the receiver does not ask for such protection from the proper court, the action may proceed against him at law, and he must be deemed to have waived, if need be, such ground of objection to the action, or to have voluntarily elected to defend the action at law to the same effect as if leave had been given by the proper court to the institution of such suit at law. The Supreme Court of' Massachusetts recognized this principle in Paige v. Smith (99 Mass., 395) and held, as the defendants were liable to be sued at law in Vermont, they must be held so liable in that State. The action in this case was a proper one to be tried at law, and if application had been made to the District Court to restrain the action, I should think that court might. very properly have refused such order and allowed the cause to proceed to trial and judgment at law, and have directed the receiver to defend the same and abide by the decision of the court; and if it were of any practical consequence, I do not see why the record might not now be amended, and the judgment be entered and affirmed as against the receiver in form, to the same effect as if he had in fact been sued as receiver.

Mullin, P. J.:

A receiver is personally liable to persons sustaining loss or injury by or through his own neglect or misconduct. For the neglect or misconduct of those employed by him, in the performance of the duties of his office, he is not personally liable. The action in such a case must be brought against him as receiver, and the judgment, if a recovery is had in the action, must be made payable out of the fund in his hands as receiver. Divesting the owner of his property, and vesting the title and possession of it in another, is the exercise of sovereign authority, whether it is exercised by the legislature itself, or by the courts of equity or of law or other agent; and the receiver when appointed is the same agent of the power appointing him, and, like all public agents, is not personally liable for acts done in the legitimate business of the agency. The judgment in the case is, in my opinion, erroneous, and should be reversed. But as it is within the power of the court to allow the proceedings to' be amended so as to make the suit a suit against defendant as receiver, and the judgment payable out of the fund in the hands of the receiver, instead of by him personally, I am in favor of allowing the amendment; and as amended the judgment should be affirmed.

Morgan, J., thinks that the action cannot be maintained against the defendant personally, but concurs in the opinion that the record and proceedings maybe amended so as to make the judgment against the defendant as receiver, and in that shape, affirmed.

Ordered, that the record and proceedings be amended so as to make the suit and judgment against the defendant as receiver, and as so amended, judgment affirmed.


author: Mullin, P. J.:

text:
    NATHANIEL S. GILBERT, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Delivery of property to ca/rri&r — when, title vests in consignee— Demand.

    The plaintiff entered into an agreement with Park & Co. of New York, by which he was to fill certain casks furnished by them, with cider, have them loaded upon the cars at Lockport, each car to contain fifty casks, take a receipt therefor, and transmit that, with a draft for the price, to the purchasers. After certain of the casks had been delivered to the defendant, and while it was waiting for enough to fill a car, eleven of them were found to be missing. Reid, that the title to the cider did not vest in the purchasers until a car was loaded and a receipt taken; and that plaintiff was entitled to maintain an action for the cider. In such a case no demand need be made before commencing the action.
    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.
    The action was brought to recover the value of eleven casks of cider delivered to the defendant, to be transported to New York. It appeared that the casks in which the cider was placed, were sent to the plaintiff by Park & Co., the owners of them, to be filled with eider and then returned to them over the defendant’s road; from Lockport to the city, of New York. The arrangement was, that plaintiff should deliver the cider in the casks at the defendant’s depot in Lockport, and have it loaded upon a car, each load to consist of fifty casks, take a shipping receipt for the cider when so loaded, and transmit that, accompanied by a draft for the price, to the purchaser. After a portion of the cider had been received by the defendant at its freight-house at Lockport, and-while it was waiting for casks enough to be delivered to fill a car, it was discovered that eleven of the casks first delivered were missing. This action was brought to recover the value of the cider so lost.

      Laning & Willett, for the appellant.
    The cider had been sold and delivered to Rufus Park & Co., according to the terms of sale, and the plaintiff had neither title nor possession of any of the property lost, at the time such loss occurred. (Groat et al. v. Gile, 51 N. Y., 431-437; Olyphant v. Baker, 5 Denio, 379, 382; Terry v. Wheeler, 25 N. Y., 520, 525; Waldron et al. v. Romain, 22 id., 368; Krulder v. Ellison, 47 id., 36; Thompson v. Fargo, 49 id., 188; Rogers et al. v. Wheeler et al., 52 id., 262, 266.) If the cider was received by the defendant as warehouseman, then the plaintiff could not recover, no demand having been made for the property. (Whitney v. Slawson, 30 Barb., 276; Brown v. Cook, 9 Johns., 361.)

      Thomas M. Webster, for the respondent.
    No demand was necessary. The defendant .was requested to ship it, and failed to do so, and the plaintiff had to replace the cider for shipment. (The Bank of Rochester v. Jones, 4 N. Y., 497; Jones v. Bradner, 10 Barb., 193.)
   Mullin, P. J.:

So far as Daniels, J., considered the questions arising in this case, I entirely concur with him in his opinion, delivered on deciding the motion for a new trial.' There are two or three points not discussed by him, which it may be proper t.o consider briefly.

The appellant’s counsel insists, in his points on the argument of the appeal, that on delivery to the defendant of the barrels of cider that have been lost or mislaid, the title vested in Park & Co., the consignees, and that thereafter the plaintiff had no interest in the property.

It was competent for the parties to the sale to agree as to what acts should be done by the vendor before title should vest in the purchaser; and until such acts were done the title would not pass. (Kelley v. Upton, 5 Duer, 336; Story on Sales, § 296, a.) The title to property does not pass upon the completion of a contract of purchase and sale, until delivery of the property, unless it is so intended by the parties. (Macomber v. Parker, 13 Pick., 178; Reddle v. Varmer, 20 id., 280; Olyphant v. Baker, 5 Denio, 379.) It is manifest in this case that such was not' the intention of the parties. No credit for the price was contemplated, yet, if the title passed, the plaintiff could not have sued for the price until he had not only delivered the property to the defendant, but had it loaded on the ears and obtained its receipt for the same on account of the purchaser. The'title might pass to the purchaser, and yet, by the agreement, the purchase-money not be payable until the happening of some future event, or until the performance of some act by the vendor.

In the absence of any such specific agreement as to delays of payment, and further acts by the agreement to be performed by the vendor, will not the law presume that it was the understanding of the parties that title should not pass until the performance of those acts, rather than that the agreement was that title should pass and payment be postponed 2 It seems to me that it would.

The defendant was not liable to the plaintiff as a carrier. The cider was not to be carried for him, but for the purchaser. Until the title passed to the purchaser, the cider belonged to the plaintiff, and defendant held it as warehouseman merely. When the title passed it held the property as carrier for the consignee. (Lakeman v. Grinnell, 5 Bosw., 625; Blossom v. Griffin, 13 N. Y., 569; Coyle v. Western R. R. Co., 47 Barb., 152.)

When property is sold to be shipped by cars or other public conveyance, ordinarily the title passes on delivery to the carrier; but, as I have already suggested, it was competent for the parties to agree upon the acts which the vendor should perform before the title passed; and in this case the title did not pass until defendant’s receipt was obtained; and as, by the arrangement between the plaintiff and defendant, the cider was to be shipped by the carload, and the car held fifty barrels, the receipt could not be required by the plaintiff until the fifty barrels were put on the car.

Upon the evidence in the case, no demand of the cider was necessary before suit. It was placed, by the direction of the agents of the defendant, on a platform, erected for the deposit of property intended to be forwarded by its cars.' Upon such delivery it became responsible for it; and it was clearly established that eleven barrels were delivered to it which it did not account for; five of which, it seems to have been conceded, were carried off by some person other than the plaintiff; and the remaining six were shown to have been delivered, if Shook was believed; and which defendant’s agent conceded could not be. No demand under such circumstances was necessary.

The judgment and order refusing a new trial must be affirmed.

Judgment and order affirmed.


text:
      In the Matter of the Application of THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant, for the Appointment of Commissioners to Appraise Lands of JAMES SWEENEY and others, Respondents.

      Raiload Co. — chapter 237, Laws of 1869 —proceedings to take land after completion of road—what petition must contain.

    Where a railroad company, after having located and completed its road, institutes proceedings, under chapter 237, Laws of 1869, to acquire title to other lands necessary for the convenient transaction of its business, the petition need not state all the facts which are required in the original petition; nor is it necessary to make and file the maps which are required when the company first applied to acquire lands for its road.
    Appeal from an order made at the Special Term, denying the petitioner’s application for the appointment of commissioners to appraise the compensation to be paid for certain lands of the respondents, sought to be taken by the petitioner for railroad purposes.

      A. P. Laning, for the appellant.

      E. C. Sprague, for the respondents.
   Mullin, P. J.:

The land proposed to be taken is a triangular strip lying in North Tonawanda, between the track of the said petitioner’s road, which runs from Buffalo to Niagara Falls, and the track of said company’s road, running from Tonawanda to Batavia. The petitioner alleges that it desires to connect these tracks, by a track laid upon a curve extending from the one line to the other, and that such new or proposed road or track would pass over the triangular piece of land above mentioned. The persons interested in the lands, in answer to the petition, allege that the said land is not necessary for the purposes of petitioner’s incorporation; that the line or route of the railroad of petitioner has never been located over or upon the lands in question, or any part thereof; that no notice has ever been served upon them, or either of them; that no map or profile of the intended route has ever been made or filed, nor has any notice been given to the parties interested in said land that it was intended to locate the route of said road over said land; that the land in question is not in the located or adopted route of said road, and that such route has not been changed.

The issues joined by the petition and answers thereto, were tried at a Special Term held in the city of Buffalo; and for the purposes of the trial, it was admitted by the parties:

First. That the land described in the petition is not embraced within the route of the petitioner’s road, laid out and designated on the map of the route adopted by it.

Second. The line of said road does not pass over or through the premises in question.

Third. The line of said road has not been changed so as to pass over or through the said premises.

Fourth. That petitioner seeks to obtain said land to build a line connecting the Niagara Falls branch with the Batavia and Tonawanda branch.

Fifth. The said premises are 'not necessary for the purposes of petitioner’s road as now constructed and operated, except for the purpose of making the connection aforesaid. If such connection is not made at the point proposed, the land in question is not required for the purposes of the petitioner’s incorporation ; but it is necessary for the purposes of petitioner’s incorporation, that such connection be made.

After hearing the parties and considering the evidence, the court dismissed the petition with ten dollars costs.

It being conceded by the parties that it was necessary for the purpose of petitioner's incorporation, that the tracks of its two branches should be connected, and it not being alleged or shown that a track to connect them could be laid over other lands in the vicinity so as to produce less injury to the owners of the land than is done to the owners of the land in question, we must assume that the court dismissed the petition because the petition did not set forth the matters required to be alleged therein by the general railroad act, and the acts amendatory thereof.

The question for us to consider on this appeal is, whether, when a railroad company has located its road and completed it, and complied with the requirements of the statute in acquiring its lands, and it becomes thereafter necessary for the convenient transaction of its business, and in furtherance of the object of its incorporation, to acquire additional land, it must allege in the petition presented in order to acquire such additional land, the same facts which are required to be alleged in the original petition, and to make and file the same maps, etc., required to be made and tiled when it first applied to acquire lands for its road.

Section 14 of the general railroad act of 1850, required the company to state in its petition :

First. A description of the land sought to be acquired.

Second.. That, the company is duly incorporated; that it is its intention, in good faith, to construct and finish a railroad between the places mentioned in its charter.

Third. That, the capital stock has been in good faith subscribed.

Fourth. That the line of its road has been surveyed, and a map or survey by which such line is designated and located according to such survey, and filed certificates of such location, signed by a majority of the directors, in the clerk’s offices of the several counties."

Fifth. That the land described is required for the purpose of constructing or operating its road, and that the company has not been able to acquire title thereto, and the reasons for such inability.

Sixth. The names and residences of the owners, and whether any are infants, etc.

It will be seen that there is not in this section, nor is there in the act of 1850, any manifestation of an intention to allow railroad companies incorporated under it to acquire lands, except for its main line and appendages. After it has completed its line, its power to acquire land is at an end under the original act, except in cases where the title acquired has failed; then by section 21, of the act of 1850, it may proceed to acquire other lands. Chapter 231, of the Laws of 1869, remedies this omission, if it was one, in the general law, and authorizes railroad companies, at any time after the construction of any railroad operated by steam, to acquire land for the purposes of its incorporation, or of running and operating its road, in addition to what it has already acquired, by purchasing the same, or by paying such damages to the party injured as may be agreed upon ; but if the company for any cause shall be unable to agree for the purchase of such lands, it may proceed to acquire title, and to ascertain and appraise damages in the manner and by the proceedings in said act prescribed.

The whole question turns upon the construction to be given to the. .last clause above cited. Did the legislature mean, and is it the reasonable construction of this clause, that the petition to acquire a few rods of land for the purpose of placing upon it a wood-shed or water-tank, or for a ditch to convey water, etc., or to fence the land of the company, shall contain the same allegations as are required to be made in the original petition, and the same or any maps to be filed, as are required to be made and filed upon such original application.

Why should the petition to acquire additional land, allege that it is the intention to construct and finish a railroad between the termini mentioned in its charter. Such an allegation would be untrue, wholly irrelevant to the proceeding, and of no benefit to either the company or owners of the land. Would it benefit either party to allege that the capital stock had been . subscribed for, or that its main line had been surveyed, or map of it made and filed ? Most clearly it would not. Such allegations have no relation to the new proceeding, and unless clearly and imperatively required to be made, they ought to be omitted, and the petition is valid without them. The object in view, in requiring the railroad company to survey and locate its line, and file maps thereof, before applying to acquire title to land, is to enable owners to know where it crosses their lands, and thus enable them to ascertain the extent of the damages done thereto by the construction of the road. Such a -consideration has no application to proceedings to acquire a few rods of land, and as to which the damages would be the same in whatever manner the track crossed it. The company, as I understand the petition, desires to appropriate the whole of the lots described in the petition.

I do not intend to hold that the petition required by the act of 1869 may contain one set of allegations when the land is a large parcel, and other and different ones when it is a small parcel. What I do intend to hold, is, that allegations may be omitted in petitions under the act of 1869, which are essential in the act of 1850. In construing these acts, regard must be had to the end to be attained by them, rather than to the words of the act.

The only map that could reasonably be required to be filed, would be one showing the location of the road over the lands proposed to be taken, but that is not the map required to be filed by the act of 1850.

I am of the opinion that the order should be reversed, and proceedings remitted to the Special Term, with directions to appoint commissioners. The question being a new one, costs are given to neither party.

Ordered accordingly.


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    MARY A. CLEMENCE, Plaintiff, v. THE CITY OF AUBURN, Defendant.

      Sidewalks—steepness of grade of— liability of city for injuries occasioned, by.

    The common council of the city of Auburn having established the grade for a portion of one of the sidewalks therein at three-quarters of an inch to the foot, it was found that, at the junction of the old with the new sidewalk, there was a difference of level of six inches; to obviate .which, the common council directed that the stone joining the new with the old sidewalk be laid on a slope of six inches in about three and one-half feet. The plaintiff, in passing along the said sidewalk, at a time when the said stone was covered with about one inch of snow, slipped thereon, fell and was injured. Held, that it was negligence on the part of the city to have this stone so laid, and that it was liable to the plaintiff for the injuries sustained by her.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a nonsuit directed by the court.

      George F. Comstock, for the plaintiff.
    A city is not liable for not constructing public improvements, and the question of whether they shall be constructed is a judicial discretion, but after having decided to construct and undertake the improvements, then the corporation acts ministerially, and is liable in damages to the person injured by the unskillful, negligent or unsafe construction of them, or failure to keep them in proper condition. (Shearman & Redfield on Negligence [3d ed., 1874], 183, § 124; 4 Abbott’s Digest [new ed.], 460, § 144; The Rochester White Lead Co. v. The City of Rochester, 3 Comst., 463; Huston v. The Mayor, 5 Seld., 163; Conrad v. The Village of Ithaca, 16 N. Y., 158; Weet v. The Trustees of the Village of Brockport, 16 id., 161; Barton v. The City of Syracuse, 37 Barb., 293 ; affirmed, 36 N. Y., 54; Lewenthal v. The Mayor of New York, 61 Barb., 511; Alb. L. J., Dec. 26,1874, pp. 401-403, article “Municipal Corporations.”) The city is bound to construct the sidewalks safely and properly, and to maintain them in such condition that they shall at all times be safe for the traveler. (2 Dillon on Municipal Corporations, 911, 712, §§ 789, 790, 791; Whart. on Neg. [1874], § 772; 4 Abbott’s Digest [new ed.], 285, § 35; Wallace v. New York, 18 How., 169; Morey
      v. The City of Troy, 61 Barb., 589; Allentown v. Kramer, 73 Penn., 406; Chicago City v. Robbins, 2 Black, 422; Cook’s Highway Laws, 1870, p. 205.)

      James Lyon, for the defendant.
   Mullin, P. J.:

The plaintiff is a resident of the city of Auburn. ■ On the 3d February, 1872,’ she was passing along the sidewalk on State street, in said city, and slipped and fell and injured the ulnar nerve of the arm, by reason whereof -she has suffered a good deal of pain, and was for several months unable to perform her ordinary labor, and the arm was not, at the time of the trial, able to raise any considerable weight, and in the opinion of the physician, will never be restored to its normal condition.

Some four or five years before the accident, the owner of the lot in front of which this walk was laid, desired to relay and repair it, and applied to the chairman of the street committee of the common council to fix the grade of the sidewalk. A grade was established having a descent of three-quarters of an inch to the foot. It was ascertained that if this grade was continued to a certain point in the walk, there would be a difference of six inches between the new grade and the walk immediately adjoining. This fact being communicated to the chairman of the street committee, he directed that the stone which was used to fill up the gap between the new and old grades, be laid on a slope, having a descent of six inches in about three and a half feet.

On the day of the injury it had snowed in the morning so that at the time the plaintiff was passing along the walk in question, there was some half an inch of snow on the walk, which concealed the descent so that a person unacquainted with the grade would not be likely to observe it. The plaintiff not perceiving it stepped upon the stone in question, and immediately slipped and fell and was injured.

On the trial the defendant moved for a nonsuit on two grounds:

1st. Because the plaintiff was shown to have been guilty of negligence that contributed to the injury.

2d. That in establishing the grade of sidewalks, the common council act judicially, and if the walk is laid in accordance with the grade so established, the city is not liable.

On this ground the court nonsuited the plaintiff. The court directed the motion for a new trial to be heard in the first instance at the General Term.

By the charter of the city of Auburn the common council has power, and it is made their duty, to make, repair and preserve the highways, streets, lanes, alleys, bridges, side and crosswalks, and to cause them to be repaired from time to time. (Laws 1859, chap. 431.)

To make or repair sidewalks in said city, the common council is required to give notice in writing to the owners or occupants of lots in front of which sidewalks are required to be made or repaired, specifying the work to be done, and the manner and time' in which the work is to be done.

The repairs were made in conformity to the directions of the chairman of the street committee, whose power to give directions is not questioned-

It does not require argument to prove that a walk, having in it a stone laid upon the grade having a descent of six inches in the distance of three and a half feet, is dangerous to persons not aware of such grade. It is the duty of those charged with the construction of the streets and sidewalks, to see that they are so made and kept as to be safe for all persons passing along the same on foot, on horseback, or in carriages; and if this duty is not performed, and injury results from the omission, the municipality is liable to respond in damages to the person injured. (Wallace v. The Mayor, 2 Hilt., 440; Clark v. City of Lockport, 49 Barb., 580.) The common council of Auburn may establish such grade for its streets as it sees fit, and it is not responsible for an error of j udgment in establishing such grade. (Rochester White Lead Co. v. City of Rochester, 3 Comst., 463 ; Lloyd v. The Mayor, 1 Seld., 369.) But this exemption from liability does not relieve the city from liability, if, in sinking or repairing, the street or sidewalk, it is left so as to be dangerous to the life or limbs of persons passing over it. (4 Abb. Dig., 460, §144; id., §153; Barton v. Syracuse, 36 N. Y., 54.) Whether a walk shall be on the same level with the street, or a foot above or below, rests in the discretion of the common council) and they are not liable for error of judgment, if they have failed to establish the best grade. But they are liable if they leave a hole in it or a sudden descent, by reason of which persons are injured without fault or neglect on their part. (Rochester White Lead Co. v. City of Rochester, supra.) There is no immunity for such a wrong. Officers charged with the care and preservation of the streets and walks of a city, must be held to a rigid accountability when they omit to do whatever is necessary to protect the public from injury by reason of defects in such streets or walks. In no other way can life or limb be properly protected against gross neglect or the meanest parsimony.

The nonsuit must be set aside, and a new trial granted, costs to abide the event.

New trial ordered, costs to abide event.


text:
    HENRIETTA HARWOOD, Respondent, v. NATHANIEL KEECH, Appellant.

      Slander—privileged communications—malice—Tww proved.

    Statements made by a resident of a school district, having a daughter whom he wishes, to send to school, to the trastees of the district as to the bad character of a woman proposed to be employed as a teacher, are privileged, and no recovery can be had therefor without proof of express malice.
    Malice is implied from the utterance of slanderous charges not justified or privileged, and a denial of malicious intent is of no avail.
    To authorize a recovery in cases where the communications are alleged to be privileged, it is sufficient to prove that the defendant knew the charge to be false.
    Appeal from an order denying a motion for a new trial made upon a case and exceptions.
    This is an action for slander. The plaintiff complained that the defendant charged her with being a person of unchaste character. The defendant alleged that he was a resident of the school district in which the plaintiff taught; that his daughter attended plaintiff’s school; and that the statements were made by him to the trustees of such school district, and were privileged.

      Morris & Leary, for the appellant.

      E. G. Lapham, for the respondent.
   Mullin, P. J.:

The defendant being a resident of the school district in which it ■was intended to employ the plaintiff as a teacher, and having a daughter that he desired to send to said school, it was not only his fight but his duty, if she was a woman of bad character, to communicate to the trustees such information as he possessed in reference to her character, and the communication thus made was privileged, anff plaintiff could not recover without proof of express malice. (Thorn v. Moser, 1 Den., 488; Starkie on Slander [Wend, ed., 1843], chap. 10-13; Townsend on Slander, §209, and note 1004; Cockayne v. Hodgkisson, 5 C. & P., 543.)

To prove malice, she called the persons by whom defendant says he was told the matters communicated to the trustees, and they testified that they never told him any of the matters relating to plaintiff’s character, that he said they had. (Townsend, §§240, 241, and notes 1203 and 1209.) It was false, then, that he had been so told by the persons named by him. He disclaimed any personal knowledge in relation to the plaintiff’s character, and hence the jury had the right to find that he did not believe the charges he made against her; as he, could not believe them without some evidence of their truth. Had plaintiff been told as he claims to have been, he would not be liable, notwithstanding the charges were unfounded. The communication to the trustees. would 'then have been a privileged one; but the known falsity of the charge took from the statement to the trustees the immunity given to a privileged communication, and subjected the defendant to liability for defamation. (Townsend, § 241, and notes 1214-1224.)

The defendant swore that the persons named by him informed him of the matters he charged against the plaintiff’s character, as did one or two other witnesses. But the jury did not believe him or his witnesses. Their finding is, of course, conclusive on that subject.

Had the defendant the least confidence in the truth of these stories he claimed had been told him about the plaintiff, he would at least have called the three boys who claimed to have seen her having sexual intercourse with Hazelton in the school-house, but he did not venture to do that, and thus save himself from the imputation of having maliciously slandered an unoffending girl, who was endeavoring, by honest labor, to earn a living. The charges were the most infamous that a man could invent against a woman. He struck at her in a way most fatal to her reputation. It was put forward as prompted by the defendant’s zeal for the welfare of the district, when he knew it was false, and could have no other effect than to wound and ruin her.

But this defendant did not limit his communication to the trustees. He made the same imputation against the plaintiff in the presence and hearing of others, as to which there is no shadow of claiming them to be privileged. (Townsend, § 243; Thorn v. Moser, 1 Den., 188; Burlingame v. Burlingame, 8 Cow., 141; Sewall v. Catlin, 3 Wend., 291.)

It only remains to inquire whether any errors were committed in the rulings of the court, on the trial or in the charge to the jury-

The first error relied on, was in refusing to allow the defendant to answer the question: “ Did he [Lamb] inquire of you [as to the i charges against the plaintiff], or did you introduce the subject?” ! It was wholly immaterial whether the defendant was asked to make , the statement or whether he volunteered it. In either case it was privileged, unless proved to be made maliciously. '

Defendant was asked whether he had any purpose or thought of injuring the plaintiff. The court refused to permit the question to be answered. Slander is not one of the cases in which a defendant can relieve himself from liability for .a slanderous charge by denying malice. As well might he be permitted to disclaim it upon the trial of an indictment for an offense °in which malice is an element.

In actions of slander, malice is implied from the utterances of slanderous charges, not justified or privileged, and in such cases a denial of malicious intent is of no avail; the law presumes it, and the presumption cannot be rebutted by the slanderer denying it. In cases where the communication is claimed to be privileged, and the burden of proving malice rests on the plaintiff in order to recover, and it is proved that the defendant knew the charge to be false, the law again implies malice, and the defendant cannot rebut it. But where there is no direct proof of the known falsity of the charge, but it is sought to be established by facts and circumstances, then it is competent for defendant to disclaim a malicious intent. (Feidler v. Darrin, 50 N. Y., 437, 443.)

If, however, the evidence of the defendant as to intent, was competent at the time it was offered, a new tria,l should not be granted, it being established by the subsequent evidence in the case, that the slander was uttered to others besides the trustees, and to whom there could be no pretense of privilege.

The exception to the charge is in these words : The defendant’s counsel excepted to each and every part of the charge, which reads as follows. The counsel then sets out several distinct propositions, and he desires now to avail himself of an exception to each proposition. This he is not entitled to do, unless the whole portion of the charge excepted to is erroneous. Without entering upon an examination of the several parts of the charge excepted to, it is sufficient to say, we do not think the charge erroneous as to all or any of them.

The order refusing a new trial is affirmed.

Order affirmed.


text:
    THE SYRACUSE, PHŒNIX AND OSWEGO RAILROAD COMPANY, Respondent, v. R. NELSON GERE, Appellant.

      Ghaptw 140, Laws of 1850—Subscriptions to stock of railroads — check taken as cash — agent to pi'ocure subscriptions —power of.

    The defendant, having been applied to by an agent employed to procure subscriptions to the stock of the plaintiff, gave his check for the ten per cent, required by the act of 1850 to be paid in cash, upon the express agreement that he should never be called upon to pay the same. In an action brought by the company upon the check, held (1), that the talcing of the check for the ten per cent required to be paid in cash, was not such a violation of the act as to render it void; (2), that the agent had no authority to bind the company by his agreement in regard to the liability of the defendant upon the check.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to recover the amount due upon a check given by the defendant, 'payable to the order of the treasurer of the plaintiff.

      Chamberlin & Knapp, for the appellant.

      Hiscock, Gifford & Doheny, for the respondent.
    The arrangement not to enforce defendant’s subscription is not a defense, but is a fraud upon the statute, upon defendant’s associates, upon all stockholders that might thereafter take the plaintiff’s stock, and a fraud upon the public. (See Graff v. Pittsburgh and Steubenville R. R., 31 Penn., 489; Robinson v. Pittsburgh, etc., R. R. Co., 32 id., 334; Litchfield Bank v. Church, 29 Conn., 137; Downer v. White, 12 Wis., 176; Kennebeck and Portland R. R. Co. v. Waters, 34 Me., 369 ; Blodgett v. Morrill, 20 Vt., 510; Tuckerman v. Brown, 33 N. Y., 297, and cases there cited.)
   Mullin, P. J.:

The plaintiff sued defendant on a check for $100, which was given for the ten per cent required by the general railroad law, to be paid upon each share of stock of a railroad company, at the time of subscribing therefor. The defense is, that before organization of the company, Patrick H. Agan was engaged with others in procuring subscribers to plaintiff’s stock, with the view of organizing a corporation, under the general railroad law, to construct a road from Liverpool, in Onondaga county, to connect with the Hew York Midland, in Yolney, Oswego county. P. H. Agan applied to defendant to subscribe, and, as an inducement to do so, he assured him he would not be called upon to pay anything upon the subscription; and the defendant gave his check for the ten per cent required to be paid in cash, upon a bank in which he notified Agan he kept no account, and that it would not be paid, and Agan agreed that it should not be presented. It was drawn upon that bank that it should not be paid if presented.

The court gave judgment for the plaintiff, and the defendant appeals.

There are but two questions of any importance arising on this appeal. The first is, whether taking it for the ten per cent was such a violation of the statute as rendered it void; second, whether the plaintiff acquired such a title to the 'check as enables it to sue upon it.

First. Is the check void? The second section of the general railroad law (3 Statutes at Large, 618), provides that the articles of association shall not be filed and recorded in the office of secretary of State until at least $1,000 of stock for every mile of railroad proposed to be made is subscribed thereto (that is, to the article of association), and ten per cent paid thereon in good faith and in cash to the directors named in the articles of association.

In Crocker v. Crane (21 Wend., 211), the question was, whether the acceptance of checks in lieu of cash was a compliance with the provision of the charter, which, in that case as in this, called for a percentage to be paid in cash at the time of subscribing. It was held it was not, as in that case the commissioners for distributing the stock received checks or uncurrent money for the percentage of a large number, if not all the subscribers. The action of the commissioners was held to be void, as contrary to the policy of the statute. Cowen, J., who delivered the opinion of the court, says (p. 220): Why are they [checks] taken as cash in the ordinary course of business ? Because they are a mere transfer of money which a man has at his banker’s. I do not deny that receiving an occasional check might have been a fair substitute.” The assistant vice-chancellor, in Thorp v. Woodhull (1 Sandf. Ch., 411), held that the receipt, by the commission appointed to receive subscriptions for, and to distribute the stock of an insurance company, of a check of a subscriber, in payment of a percentage required by the charter to be paid in cash at the time of subscribing, was a proper exercise of power, and the drawer was liable on the check; and he considers the receipt of the check valid, because it was received as cash. It did not appear that the commissioners had any knowledge or suspicion that the check was not good, or that it would not be paid in due course. They received it at their own risk. It seems that the corporation took it from them as equivalent to cash, and it is not proved but that the commissioners and the officers of the corporation believed it to be equivalent to money. He further says, that it does not appear that a check was taken from any other subscriber for stock.” The considerations that induced the vice-chancellor to hold the subscription valid in this case before him, apply in all their force to the case before us. There is no evidence that a check was received from any other person than the defendant, or that the directors had any knowledge of the understanding between Agan and defendant, that the check should not be presented or • paid, or that the cash to pay it was not in the bank to meet it when presented.

If the directors or the company were bound by the acts and agreement of Agan in the premises, the check must be held void, unless defendant is not in a situation to avail himself of the fraud which was committed, or attempted to be committed, upon the company or its stockholders. There is no proof of the authority given to Agan. We must ascertain it, therefore, from the nature of his employment and the duties which it was probably intended he would perform.

The general railroad act contemplates that persons desiring to subscribe for stock, shall meet together, and agree upon and sign the articles of association, and subscribe for stock. This meeting is made up of persons invited by one or more persons friendly to the enterprise, with the view of inducing them to subscribe for stock, and to become corporator's in the company, and some times to take subscriptions to be presented to the directors when appointed. This is all the duty a person so employed, in the absence of instructions clothing him with more enlarged powers, is expected to perform, or it is necessary he should perform.

Agan had no power to make the arrangement set up in the answer, and if he made it, neither the directors nor the company were bound by it. It is not to be assumed, in the absence of the clearest proof, that the subscriber to the stock, before the organization of the company, or the directors, after that event, would deliberately authorize the doing of an act that would destroy the subscription of any one or more of the subscribers, and endanger the existence of the company after incorporation.

Second. Has the corporation a right to maintain an action on the check ? In other words, was the check ever legally transferred to the company ? Although the statute contemplates and permits subscriptions to the stock of a railroad company before incorporation, yet these subscriptions do not bind the subscribers until the company becomes incorporated. When that event occurs the subscription becomes the property of the corporation, and it alone can sue thereon. If it was competent to receive a check for the ten per cent required to be paid down at the time of subscribing, that cheek becomes the property of the company, at the same time and in the same- manner it would have become owner of the money, had it been paid in lieu of the check.

It does not matter, it seems, to whom the check was made payable. It was transferred to the company upon incorporation, just as land intended to be granted for the use of a religious society becomes the property of the corporation upon the incorporation becoming complete.

The judgment must be affirmed.

Judgment affirmed.


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    AARON PLYMPTON, Appellant, v. ERNST A. BOEHME and Wife, Respondents.

      Contract of sale of real estate — rights of assignees of—interests therein as between each other.

    When, a contract for the sale and purchase of land is assigned by the purchasing party to two persons, so that each becomes entitled to a one-half interest therein, held, that if one of such persons pay to the owner of the land the entire contract-price and take a conveyance thereof to himself, he is bound, on being tendered by his co-assignee one-half of the purchase-money, to convey to him a one-half interest in the land.
    Appeal from a judgment in favor of the defendants, entered on the report of a referee.

      J. Horr, for the appellant.

      E. A. Nash, for the respondents. .

       This and the two following cases were decided at the January term, 1875.

   Mullin, P. J.:

Gideon Granger, at the time of his death, was owner in fee of the premises in question in this suit. By his last will, Francis Granger was appointed trustee for the sale of the real estate of which he died seized. Said trustee, on the 8th of April, 1868, contracted to sell and convey the land"in question to Emily Beebe, for the sum of $2,705, to be paid as follows : $500 down, and the balance in six annual payments with interest, and upon the payment of $1,500 and all interest due, he was also to convey the said land to said purchaser, and take from her a bond for the unpaid purchase-money, secured by a mortgage on said premises. On the 13th of January, 1869, Mrs. Beebe, in consideration of $1,600 to her paid by William Gleason and James McOurley, assigned to them all her right, title and interest in said contract and in and to all moneys paid thereon, and she delivered possession of said premises' to said assignees, and they paid the interest on the contract for the years 1869 and 1870. On the 7th of November, 1870, Gleason, for a valuable consideration, assigned his interest in said contract to Van Rensselaer Bates. On the léth of February, 1871, Bates, for a valuable consideration, assigned his interest in said contract to the plaintiff in this suit. The defendant Boehme became owner of the interest of McOurley in said contract, but at what time does not appear.

At some time prior to May, 1871, Francis Granger died, and James O. Smith was appointed trustee in place of said Francis. Prior to the 8th of May, 1871, the plaintiff" tendered to said Smith one-half of the amount due on the said contract of Mrs. Beebe, and demanded a conveyance of one-half of said premises. Smith refused to convey one-half, but proposed to convey them wholly to the plaintiff, if he would pay the balance due on said contract, and that he would notify the other party interested in thé contract to pay up the amount due, or he would forfeit the contract, and then he would convey to plaintiff. Smith finally extended the time for such other owner to pay in. The plaintiff again tendered one-half the" amount due, and again demanded a deed, but Smith declined to give two deeds of said premises, or to convey them to two persons, but, on the 8th of May, 1871, did convey the whole of them to defendant Boehme; and the plaintiff subsequently, and before bringing this action, tendered to Boehme one-half the amount paid by him on said contract and a bond of indemnity against the mortgage he had given for part of the purchase-money to Smith, but Boehme refused to receive it and convey one-half to plaintiff, and then this action was brought to compel such conveyance.

The referee to whom the issues were referred for trial, nonsuited the plaintiff, and judgment of nonsuit was accordingly entered, and from it plaintiff appeals. In justification of the nonsuit, the respondents’ counsel insists in his first point that Bates, plaintiff’s assignor, acquired no interest in the contract, as the assignment was without consideration; that it was $100, and that was never paid to Gleason, the assignor. I find no color for such a proposition. The assignment in terms recites a valuable consideration, and there is not a word of evidence tending to show that the recital was not true. In a separate instrument, but attached to or written on the same paper with the assignment, it is said that $100 was deposited in the hands of one Decker, to be paid in a certain contingency to Gleason, but it is stated at the close of the case, that the partition suit out of which the contingency referred to arose, was discontinued before the assignment of Bates to the plaintiff, and that transaction has therefore no connection with this case.

The plaintiff then must be taken to be, by virtue of the assignment from Bates, the owner of one-half the interest of Mrs. Beebe in the contract from Granger. It was competent, doubtless, for Judge Smith to forfeit said contract by reason of the breach of its covenants on the part of Mrs. Beebe,.but it is not proved that it was ever forfeited, nor is there any evidence from which such a forfeiture can be inferred.

The offer of performance by plaintiff, imposed upon Boehme the duty of accepting it and conveying to plaintiff the interest' in the premises to which he is entitled.

It is not necessary now to decide whether the offer was in strict compliance with the terms of the contract. That will be best understood when the evidence is all in. If there has not been a full, performance by the plaintiff, he will be charged with- the costs of the action, and he will be entitled to a déed only upon á full compliance with the contract, and "upon securing Boehme' from liability upon the bond and mortgage given to Judge Smith to the extent of one-half thereof and interest thereon.

Judge Smith was not bound to accept any of the offers of the plaintiff, as he was under no obligation to subject the estate to liability to litigation with more than one grantee.

The judgment must be reversed and a new trial ordered, costs to abide event.

Ordered accordingly.


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    WILLIAM H. WOODHULL, Sole Trustee of School District No. 9, Town of Webster, Appellant, v. JACOB BOHENBLOST, Collector of said District, Respondent.

      Collector of school taxes—bond given by—statute as to, mandatory—Trustees not entitled to receive money— actions against collector.

    A collector of school moneys has no power to execute a warrant for the collection of a tax until the bond directed to be given by section 83, chapter 555 of 1864, is executed.
    Until the trustees limit the time within which the bond must be given, and determine its amount, the collector will not be in default.
    The trustees are not entitled to receive the money from the collector, who is only obliged to pay it out on their order, and he is not in default until such an order is drawn and presented to him.
    An action lies against the collector, in favor of the trustee, on his bond: 1st. When he fails to execute his warrant. 2d. If,-by his laches, any tax is lost to the district, or he has neglected to pay over any balance in his' hands to his successor.
    This action was brought to recover of the defendant, alleged to be collector of school district No. 9, of the town of Webster, the amount of a tax assessed in said district for school purposes, and for the collection of which a tax list and warrant were delivered to the defendant as collector of the district, and which had never been returned by him.
    The defendant was duly elected collector on the 14th of October, 1873, and was notified of his appointment on the fifteenth of that month. On the 12th of November, 1873, a tax list- and warrant were made out and delivered to him. Up to that time he had not executed a bond for the faithful performance of his duties, nor had he been required to execute one. Some days after the warrant was left with him, the trustee left a bond to be executed-, but it was never done.
    A warrant and tax list ha’d been delivered to defendant for the collection of the same tax, a few days before the one above mentioned. The trustee, learning that it was defective, as not being assessed upon the last preceding assessment roll of the town, took it back and issued a second one. The defendant collected the tax on one person on the first list, but did nothing under the second. The trustee drew no orders on the defendant, and no money has been paid to the trustee, nor has the warrant been returned.
    The County Court of Monroe, in which the action -was brought, nonsuited the plaintiff and denied a motion for a new trial. The plaintiff appeals to this court.

      William E. Edmonds, for the appellant.

      H. Sargent, for the respondent.

       Decided at the January term, 1875.

   Mullin, P. J.:

The grounds upon which the defendant’s counsel moved to non-suit the plaintiff were:

1. That the County Court had not original jurisdiction of the action, as it was not alleged in the complaint that the plaintiff was a resident of the county of Monroe.

2. The collector had not given a bond, and was not therefore collector.

3. No order has been drawn on the collector for the money, and until that is done it cannot be known that he has not performed his duty.

é. The plaintiff had no power to withdraw the first warrant, without the consent of the State superintendent, which has not been obtained.

5. The warrant could not be delivered to the collector until after thirty-one days from the day on which the tax -was voted. The warrant in this case was issued in twenty-nine days after.

6. If the defendant was liable, the action should have been on his official bond; and as he had given none, no action could have been maintained.

The court held that it was only necessary to allege in the complaint that the defendant was a resident of the county.

As to the second, it was proved that, in the bond left with the defendant for execution, the sum of $150 was inserted.

By section 83 of the act relating to common schools, passed in 1864, it is provided that within such time, not less than ten days, as the trustee shall allow him for the purpose, the collector, before receiving the first warrant for the collection of the money, shall first execute a bond in such sum as the district meeting shall have fixed, or, if the meeting shall not have fixed a sum, then in such sum as the trustee shall fix.

It would seem to be a legitimate conclusion from the requirement of the statute, that, before receiving the first warrant for the collection of money, the collector is required to give a bond ;■ that it was the intention of the legislature that the collector should have no power to execute a warrant for the collection of a tax until such bond is given.

Before a bond can be executed, the act contemplates that the trustee shall limit a time within which it must be. executed, and fix the amount of its penalty. Until these things are done the collector is not iñ default, but the warrant shall not be given to him until he has given the necessary bond.

It seems to me that this provision of the statute is mandatory, and as no bond has ever been given, the collector has never had authority to collect the tax. Inserting the amount in the bond left with the defendant for execution, was such a designation of the amount of the penalty as satisfied the statute in that regard; but as no time has been limited for executing the bond, the collector might, for aught that appears, wait until the end of his term before giving his bond.

By section 88 the collector is required to keep in his own possession the moneys collected and received by him by virtue of any warrant, to be paid out by him upon the order of the trustee.

The trustees are not entitled to receive the money, and the collector is not in default for not paying, until the order is drawn and presented. No such order being drawn in this case, it is not establisked that he has neglected or refused to pay over money collected by him. The remedies of a trustee against a collector are : First, an action on his bond, if he has not executed his warrant; and, second, if, by his laches, any tax is lost to his district, or he neglects to pay over any balance in his hands to his successor, an action on his bond. And these seem to he the only actions that lie against the collector, and in favor of the trustees.

The first warrant could not be withdrawn and another substituted in its place, without the consent of the superintendent of public instruction. That not being obtained, the last warrant would not have protected the collector had he attempted to enforce it. (See § 87 of the act of 1864.)

I have now disposed of all the grounds of nonsuit that seem to require consideration, and my • conclusion is that plaintiff was rightly nonsuited.

Judgment affirmed.


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    JOHN D. MOORE, Appellant, v. WILLIAM H. BRINK and CHARLES F. KING, Administrators, etc., Respondents.

      Joint stock companies— Copartnerships— Chap. 258 of .1849— Chap. 153 of 1853 — liability of stockholders under — Representatives of deceased stockholder — when action can he maintained, against.

    In the absence of any legislation regulating the liability of members of voluntary joint stock companies or associations, they are to be treated as partnerships, and the members are individually liable for the .debts of the association.
    By the provisions of chapter 258 of the Laws of 1849, as amended by chapter 153 of the Laws of 1858, the right to sue the members or stockholders individually, after judgment and execution against the company, is reserved to its creditors.
    If one of the members die, the creditor must first pursue his remedy against the survivors.
    Appeal- from a judgment in favor of defendants, entered upon the decision of the court on a trial without a jury.
    W. B. Ruggles, for the appellant.
    On the death of John Brink, his stock in the Savona Union Store passed to his administrators, the defendants, who thereby became, by operation of law, stockholders, subject to the burdens incident to its ownership. (Bailey v. Hollister, 26 N. Y., 112; Matter of North Shore Staten Island Ferry Co., 63 Barb., 556; Diven v. Duncan, 41 id., 524; Rev. Stat., part 2, chap. 6, tit. 3, art. 1, § 6; 2 Edm., 84, 85; Laws of 1869, chap. 157.) The statute makes that liability a joint and several individual liability. After execution against the company, returned unsatisfied, “ suits may be brought against any or all of the shareholders or associates individually.” (Act of 1849, chap. 258, as amended by chap. 153, Laws of 1853; 4 Edm., 650.) The reason of the rule requiring partnership creditors to exhaust their remedy against the survivors before suing .the personal representatives of a deceased partner, does not exist in joint stock companies. (Collyer on Part., § 129 [3d Am. ed.]; Story on Part., § 346, and note; Case v. Abeel, 1 Paige, 393 ; 17 N. Y., 354.)

      Rumsey & Miller, for the respondents.
    No suit can be maintained upon a partnership liability against the legal representatives of a deceased partner until the surviving partners have first been sued and execution against them returned unsatisfied, or unless they are insolvent. (Voorhees v. Child’s Exrs., 17 N. Y., 354, 357; Hoyt v. Bonnett, 50 id., 538, 545.) The common-law rule was that unincorporated joint stock associations are partnerships. (Parsons on Part., 544; Tappan v. Bailey, 4 Metc., 529, 535; Wells v. Gates, 18 Barb., 554, 556; Holmes v. Higgins, 8 E. C. L., 28; Bridenbecker v. Hoard, 32 How. Pr., 289.) The shareholders must be sued jointly and survivors must be sued first. The provision that they shall be individually liable does .not make them severally liable. (Allen v. Sewall, 2 Wend., 327, 338; Moss v. Oakley, 2 Hill, 269; Bailey v. Bancker, 3 id., 188, 190.) Nor are they made severally liable because the statute permits any or all to be sued. These words are qualified by the words, “ as now provided by law,” and they mean “some or an indefinite number.” (Witherhead v. Allen, 28 Barb., 666.) The death of one joint obligor renders his survivors only primarily bound, and the executors cannot be proceeded against in the first instance. (Fielden v. Lahens, 6 Blatch., 524; Richter v. Poppenhausen, 42 N. Y., 373, 376.)

       Decided at the January term, 1875.

   Mullin, P. J.:

The Savona Union Store was a voluntary joint stock association, that carried on the mercantile business at Savona, in the county of Steuben, and was composed of more than seven members who were stockholders therein. On the 15th August, 1858, said company became indebted to Chester "Whitaker, in the sum of $644.17, on which certain payments were made. In 1866, the plaintiff, to whom the aforesaid indebtedness had been assigned, brought an action in this court to recover said indebtedness, and in July of that year recovered a judgment against said company for $464.17 damages, besides costs. An execution was duly issued on this judgment and returned wholly unsatisfied. John Brink was a member of said company from August, 1858, until his death in July, 1872. The defendants were appointed administrators of his- estate, and took upon themselves the duty of said office. The plaintiff, after the appointment of said administrators, brought this action against them to recover the said indebtedness, upon the ground that they had become owners of the stock held by their intestate at the time of his death, and were therefore liable as stockholders in said company. The learned judge who tried the cause, held that the action could not be maintained, until the plaintiff had exhausted his remedy against the surviving members of said company, and as that had not been done he dismissed the complaint.

The only question before us is, whether this ruling of the learned judge was right. In the absence of any legislation regulating the liability of members of these voluntary joint stock companies or associations, they are to be treated as partnerships, and the members individually liable for- the debts of the association.

The legislature in 1849 passed an act (chap. 258 of the Laws of that year), providing that any joint stock company consisting of seven or more members, might sue and be sued in the name of the president or treasurer, and that suits so brought Should have the same force and effect, as regarded the joint rights, property and effects of said company, as if prosecuted in the names of all the shareholders in the manner provided by law. It was further provided, that no suit so commenced should abate by reason of the death or resignation of the officer in whose name it was brought. It was further provided that the officer in whose name the action was brought should not be personally liable upon the judgment recovered against him, nor should he be exempt from any liability he might be under as a member of said company. By the fourth section of said act, it was declared that nothing contained in it should be construed to deprive any plaintiff of the right, after judgment against the company, to sue all or any of the shareholders individually, as is provided by law, or of the right to proceed in the first instance against the persons composing such company, in the manner now provided by law. The fifth section provided that nothing in said act should be construed to confer on joint stock companies any of the rights or privileges of corporations, except as therein specially provided.

In 1853 another act was passed, amending the act last referred to (chap. 153 of the Laws of that year), and by the fourth section such former act was amended by providing that after judgment against the company and execution thereon is returned unsatisfied in whole or in part, suits may be brought against any or all of the shareholders individually, as now provided by law. The remaining provisions have no bearing on the question under consideration and therefore omitted.

. In view of the provisions of the fourth section of the act of 1849, as it was passed, and as it is amended, it is manifest that whether joint stock companies are or are not corporations, the right to sue the members or stockholders individually, after judgment and execution against the company, is reserved to the creditor of the company, as that right existed at the time of the passage of the act of 1849. At that time, joint stock companies, unless exempt by some special law, were mere partnerships, and must have been proceeded against as such. And if one of the partners died, the creditor must proceed against the surviving members before an action could be maintained against the representatives of the deceased partner. (See cases collected in 4 Abb. Dig., 738, 739, §§ 397-405.)

The judgment is right, and should be affirmed.

Judgment affirmed.