« EelmineJätka »
contracts to do a thing and that of one who merely re presentment for acceptance, and if chargeable with ceives a delegation of authority to act for another is a negligence therein, is liable to the owner for all damfundamental one, applicable to the present case. If ages he has sustained by such negligence. Allen v. the agency is an undertaking to do the business, the Suydum, 20 Wend. 321 ; Walker v. Bank of the State of original principal may look to the immediate con New York, 9 N. Y. 582. The drawer or indorser of tractor with himself, and is not obliged to look to in such a draft is indeed not discharged by the neglect of ferior or distant under-contractors or subagents when the holder to present it for acceptance before it bedefaults occur injurious to his interest. Whether a
comes due. Bank of Washington v. Triplett, 1 Pet. 25, draft is payable in the place where the bank receiving 35; Townsley v. Sumrull, 2 id. 170, 178. But if the draft it for collection is situated, or in another place the is presented for acceptance and dishonored before it holder is aware that the collection must be made by a becomes due, notice of such dishonor must be given to competent agent. In either case there is an implied the drawer or indorser, or he will be discharged. 3 contract of the bank that the proper measures shall be Kent Com. 82; Bank of Washington v. Triplett, 1 Pet. used to collect the draft, and a right on the part of its | 25, 35; Allen v. Suydum, 20 Wend. 321; Walker v. Bunk owner to presume that proper agents will be em of the Slate of New York, 9 N. Y. 582; Goodall v. Dolployed, he having no knowledge of the agents. There ley, 1 Term R. 712; Bayley Bills (2d Am. ed.), 213. is therefore no reason for liability or exemption from Moreover the owner of a draft payable ou a day cerliability in the one case which does not apply to the tain, though not bound to present it for acceptance in other. And while the rule of law is thus general, the order to hold the drawer and indorser, bas an interliability of the bank may be varied by consent, or the est in having it presented for acceptance without debank may refuse to undertake the collection. It may lay, for it is only by accepting it that the drawee beagree to receive the paper only for transmission to its comes bound to pay it, and on the dishonor of the correspondent, and thus make a different contract, draft by non-acceptance, and due protest and notice, and become responsible only for good faith and due the owner has a right of action at once against the discretion in the choice of an agent. If this is not drawer and indorser, without waiting for the maturdone, or there is no implied understanding to that ity of the draft; and bis agent to collect the draft is effect, the same responsibility is assumed in the un bound to do what à prudent principal would do. 3 dertaking to collect foreign paper and in that to col Kent ('om. 94; Robinson v, imes, 20 Johns. 146; Lenox lect paper payable at home. On any other rule no v. Cook, 8 Mass. 460; Ballingalls v. Gloster, 3 East, 481; principal contractor would be liable for the default of Whiteheart v. Walker, 9 Mees. & W. 506; Walker V. his own agent, where from the nature of the business, Bank of the State of New York, 9 N. Y. 582. In view it was evident he must emplos subagents. The dis of these considerations, it is well settled that there is tinction recurs between the rule of merely personal a distinction betweeu the owner of a draft and his representative agency and the responsibility imposed agent in that though the owner is not bound to preby the law of commercial contracts. This solves the sent a drast payable at a day certain, for acceptance difficulty and reconciles the apparent conflict of de before that day, the agent employed to collect the oision in many cases. The nature of the contract is draft must act with due diligence to have the draft acthe test. If the contract be only for the immediate cepted as well as paid, and has not the discretion and services of the agent, and for his faithful conduct as latitude of time given to the owner, and for any unrepreseuting his principal, the responsibility ceases reasonable delay, is responsible for all damages suswith the limits of the personal services undertaken. tained by the owner. 3 Kent Com. 8:2; C'hit. Bills (13th But where the contract looks mainly to the thing to Am. ed.), 272, 273. be done, and the undertaking is for the due use of all The defendant being thus under an obligation to proper means to performance, the responsibility ex present the drafts for acceptance, and having in fact tends to all necessary and proper means to accomplish presented them through the Newark bank to (onger, the object, by whomsoever used.
the secretary of the company, was bound not to take We regard as the proper rule of law applicable to the acceptances it did, but to treat the drafts as disthis case, that 'declared in V'an I'art v. Il’oolley, 3 honored. The plaintiff was at least entitled to au acBaru. & C. 439, where the defendants, at Birming ceptance in the terms of the address on the drafts. ham, received from the plaintiff a bill on Londou, to Falker' v. Bank of the State of New York, 9 N. Y. 582. procure its acceptance. They forwarded it to their The defendant had notice, from the description of the Loudon banker, and acceptance was refused, but he drafts by the words “Newark Tea Tray Co." in the letdid not protest it for non-acceptance or give notice of ters sending them for collection, that the plaintiff rethe refusal to accept. Chief Justice Abbott said. garded the drafts as drawn on the company; and the "Upon this state of facts it is evident that the de defendant recognized its knowledge of the fact that fendants (who camot be distinguished from but are the drafts were drawn on the company by describing answerable for their London correspondent) have been them by the words “ Newark Tea Tray ('o.," in its guilty of a neglect of the duty wbich they owed to the letters to the Newark bank, in every instance but plaintiff, their employer, and from whom they re two. If on the face of the drafts, the address was amceived a pecuniary reward for their services. The biguous, it was not for tbe defendant to determine plaintiff is therefore entitled to maintain his action the question, as against the plaintiff, by taking an acagainst them, to the extent of any damage he may ceptance which purported to be the acceptance of bare sustained by their neglect.” In that case there Conger individually, especially in view of the inforwas a special pecuniary reward for the service. But mation it had by the words “Newark Tea Tray Co.” upon the principles we have stated, wo are of opinion in the letters sending the drafts to it for collection. that by the receipt by the defendant of the drafis in It appears that the drafts were discounted by the the present case for collection, it became upon general plaintiff as drafts on the company, and if it could have principles of law, and independently of any evidence had an acceptance in the terms of the address, it would of usage or of any express agreement to that effect, in a suit against the company have been in a condiliable for a neglect of duty occurring in that collection, tion to show who was the real acceptor. But with the from the default of its correspondent in Newark. information given to the Newark bank by Conger,
What was the duty of the defendant, and what neg while that bank had in iis hands for acceptance drafts lect of duty was tbere? An agent receiving for col drawn in the same form as those here in question, that lection, before maturity, a draft payable on a particu he would not accept such drafts in his official capacity lar day after date, is held to due diligence in making as secretary, the Newark bank chose to take accept
ances individual in form. This was negligence, for fraud of the complainants and the other creditors of which the defendant is liable to the plaintiff in dam the grantor, subsisting at the time of its execution, ages, no notice of dishonor having been given. The and for such other relief as the case night require. defendant was bound to give such notice to the The opinion of this court, together with the dissenting plaintiff. Walker v. Bank of the State of Vew York, 9 opinion, furnish a sufficient statement of the facts of N. Y. 582.
the case. The question as to whether the company would have The Circuit ('ourt (Brooke, J.,) passed a deoree vabeen liable on the drafts, if they had been accepted in cating the said deed, and directing the property menthe terms of the address, is not one on the determina tioned therein, or so much thereof as might be necestion of which this suit depends; nor do we find it sary, to be sold, and the proceeds to be applied, “first necessary to discuss the question as to whether, on the to the expenses of this case; secondly, to the payment face of the drafts, the company or ('onger individu of the defendant, Elizabeth Bayne, of the sum of $600, ally is the drawee. The very existence of the ambigu. with interest thereon from July 1, 1859, to September ity in the address, and of the question as to whether h, 1868, and of the sum of $1,200, and of $300, without the company would be liable on an acceptance in the interest; thirdly, to the payment of the creditors of terms of the address, is a cogent reason why the de the defendant, William B Bayne, subsisting at the fendant should not be allowed, without further com time of the execution of the said deed, according to munication with the holder, to do acts which may their respective rights and priorities; and fourtbly, vary the rights of the holder, without responding in the residue, if any, to be paid over to the defendant, damages therefor. The risk is on the defendant and Elizabeth Bayne.' uot on the plaintiff'. It is therefore plain that the From this decree both parties appealed. The opinion judgment must be reversed. But judgment cannot be states the case. now rendered for the plaintiff for damages. There must be a new trial. Although there is a special find
Joseph K. Roberts and Irilliam H. Tuch, for Bayue
and wife. ing of facts, it does not cover the issue as to damages. No damages are found. The action is one for negli F. Snowden IIill and Frank H. Stockett, for the State, gence, sounding in damages. Although the complaint
use of Edelen. alleges that the drawers and the indorser are discharged for want of votice of non-acceptance, and ALVEY, C. J. In this case the deed by the husband although it is found that the drawers were in good to the wife of all his real estate was made in Septemcredit when the drafts were discounted, and that the ber, 1868, for the recited consideration of $8,000. It was drawers and indorser had become insolvent by the made after suit had been brought by the complainants thirteenth and nineteenth of October, 1875, there is now seeking to have the deed declared void as against nothing in the finding of facts on which to base a themselves, and but a short time before they recorjudgment for any specific amount of damages. On
ered judgments against the grantor. The deed is the new trial that question will be open, and we do sought to be sustained as against these creditors by not intend to intimate any opinion on the sub proof, by the husband and wifo alone, that so far back ject.
as the years 1814, 1845 and 1846, and upon sereral occaThe judgment of the ('ircuit Court is reversed, with sions subsequently, the husband had received several direction to award a new trial.
sums of money of the wife whicl. he had promised at [S. ('., 17 Am. Rep. 663.-En.]
the time of receiving the same to repay to the wife; but not having paid the same, when finding bimself
pressed by his creditors, and as he says, importuned MARRIAGE – DEED FROJI MSB:LYD TO WIFE- by his wife, he summed up the various amounts reCREDITORS.
ceived from the latter, with interest, which amounted
to near about as much as the principal, and made that MARYLAND COURT OF APPEALS, APRIL 10, 1884.
the consideration of the deed.
In the answer of the defendants to the bill, instead BAYNE V. STATE.*
of a particular and detailed statement of the transac. B. having been sued on his bond, conveyed to his wife his
tions between the husband and wife, in regard to the entire real estate, being all the property he possessed
loans of the money made the consideration of the deed. The consideration for the deed was various sums of money
they aver, in general terms, that after their marriage alleged to have been loaned by the wife to the hus
in 1814, and from that time, and at sundry times, dowu band; these with the interest thereon inade up the
to the time of the execution of the deed, the wife bad amount. Shortly after tho execution of the deed, judg
received from her father, in his life-time, and ment was recovered against B. It did not appear that
from his estato after his death (which occurred in the loans were from the separately settlecl estate of the
1858) various sums of money, which she at different wife, and the transactions were while the conimon law re times agreed to loan, and did loan, to her huslation of husband and wife was in force. On a bill filed band with the promise from him, exacted by her, tbat to have the deed declared void as in fraud of the com he would repay with interest whenever she might plainants and the other creditors of the grantor
thereafter desire or need the samo, and that the hus. Helil, That the deed was good as between tho husband
band had repeatedly since promised to secure and reand wife, but void as against the creditors of the
pay her the money ao loaned. husband subsisting at the time of its execution.
They further aver that since the execution of the
deed the husband has been living upon the land conTROSS- APPE ILS from the Circuit ('ourt for Prince
veyed, together with his wife', using and cultivating George's County.
the same as her agent, and for her uso and benefit, and The bill of complaint in this case was filed in the
that the proceeds therefrom have been applied, with name of the State of Maryland for the 11se of William
the consent of the wife, to the support of herself and Z. Edelen, and of William Z. Edelen, assigneo of Della
family. A. Edelen, against William B. Bayne :und Elizabeth
A8 wns very justly said by the Supreme ('ourt of tbe Bayne, his wife. The object of the suit was to have
United States in Seitz v. litchell, 94 l'. S. 582, and redeclared void a deed made by the said William B.
peated by this court in the case of Blinkle v. Wilson, 53 Bayne to his wife on the 7th of September, 1868, as in
Md. 292, “purchases of either real or personal property *Appearing in 62 Maryland Reports
made by the wife of an insolvent debtor during cover
ture are justly regarded with suspicion, unless it the wife by the return of like sums of money. Being clearly appears that the consideration was paid out of without consideration, they could not be enforced, her separate estate. Such is the community of inter for a mere promise to make a voluntary gift is not sufest between husband and wife; such purchases are so ficient. To make the intended gift effectual the intenoften made a cover for a debtor's property; are so fre tion must have been executed; and the evidence quently resorted to for the purpose of withdrawing his should show clearly and distinctly that the husband property from the reach of his creditors and preserv had by positive act divested himself of his right of ing it or his own use, and they hold forth such property and vested the same in the wife. temptations for fraud that they require close scrutiny. This case is entirely unlike those cases where the In a contest between the creditors of the husband and husband contracts with his wife in respect to her sepathe wife there is, and there should be, a presumption rate estate, or where the fund in respect to which the against her which she must overcome by affirmative promise is made is or could be made, subject to the proof. Such has always been the rule of the common control of a court of equity, and the promise is to do law; and the rule continues, though statutos have what the court would compel the husband to do, by modified the doctrine that gave to the husband abso virtue of the wife's right to equitable settlement out lutely the personal property of the wife in possession, of the fund; or where in consideration of the wife's and the right to reduce into his possession and owner agreement to sell her real estate, and allow the husship all her choses in action.” And in support of the baud to receive the proceeds thereof, under a promise doctrine just stated many decided cases are referred to to invest such proceeds for her benefit, or to pay her by the court.
the money; asin all such cases the promise is founded In this case the rights of the parties and the validity upon good and sufficient consideration, and the relation of the transactions involvej depend upon the law as it of debtorand creditor is created as between the husband stood before the adoption of the Code in 1860.
and wife. The propositions find apt and pointed illusBy the common law, before it was modified by the tration in the cases of Stevenson v. Reigart, 1 Gill. 1; adoption of the Code, as between husband and wife, Bowie v. Stonestreet, 6 Md. 418; Stockett v. Holliday the personal property of the latter, such as money, and life, 9 id. 480; Jones V. Jones & Wife, 18 id. 464; goods and chattels, became vested immediately and Kuhn v. Stansfield, 28 id. 210; Asayfield v. Kilgour, 31 absolutely in the husband, and he could dispose of it id. 24:2; Oswald v. Floover, 43 id. 360; Crane v. Barkas he pleased. Co. Litt. 351, b; 2 Kent Com. 143. And doll, 59 id. 534. if a debtor of the married woman paid to her during The caso of Stevenson V. Reigart, 1 Gill. 1, is much coverture the debt, or if money was given to her by relied upon by the defendants, but that case is not an any third person, unless it was expressed to be to her authority in a caso like the present. In that case cersole and separate use, the money so received inured to tain executors held the legacy, a chose in action, due the benefit of the husband, and became his property the wife as her trustees, and they paid over such legabsolutely. And so the husband was entitled abso acy to the husband upon a special agreement with lutely to all sums of money received by a third person them, that the money should be invested for the ex. on account of his wife during coverture. Those prin clusive benefit of the wife. It was upon the validity of ciples are among the elementary doctrines of the com this agreement with the trustees that the case turned. mon law, and they have been adopted and applied by The court declared that the husband received the repeated decisions of this court. Turton v. Turton, money from the trustees on the agreement, not by vir6 Md. 375, 381; Taggart V. Boldin & Thayer, 10 id. tue of his marital rights, but as trustee for his wife. 104.
He received the money, say the court, upon a special If therefore it be conceded, as it may well be, upon trust and confidence that it would be invested for her the proof in the case, that the money came to the wife benefit; he received it as her trustee, and upon his failand was received or paid over to the husband, as and ure to make that investmeut, the consideration upon in the manner stated in the answer, and as testilled which he received it failed, and the wife had a right to to by the wife, still there is nothing to show that it consider it as 80 much money had and received for her came to the wife as her sole and separate estate, and
That case therefore has but slight, if any,the reconsequently it rested in the husband at once and ab motest bearing upon this case. solutely, by virtue of his marital relation. Unlike a No case could well occur where greater injustice chose in action belonging to the wife, which did not would be done to the creditors of the husband by uprest absolutely in the husband except at his own elec holding the deed of the wife than in this. Bayne, the tion to reduce it into possession, the receipt of the husband, became surety on the guardian's bond of money by the
tho receipt of the Monroe, given for the protection of the complainants, same to the use of the husband, and the money became then minor children, in 1855. He was then the owner his instantly it was received by the wifo. Carroll v. of the farm that he subsequently conveyed to his wife. Lee, 3 G. & J. 504.
We may well suppose that it was upon the faith of It would doubtless bare been competent to the hus such ownership of the farm that ho was accepted as band to settle the money upon the wife,to her solo and surety. Sosoon as he was sued on the boud in 1868 he at separate use by gift; but as has been said by this once dlvested himself of his entire property by tho court, “the act by which he divests himself of his deed to his wife, and from the position of owner he property must be clear and unequivocal ” (Thurton v. descended to and assumed that of agent, but still reThurton, supru); or as was said by the lato ('hancellor maining in the full possession and enjoyment of the Johnson, to establish such gift from the husband to farm, while his creditors were left without any possible wife, courts of equity require clear and incontroverti means from which to get payment of their just deble eridence. George r. Spencer, 2 Md. ('h. Dec. 353, mands. This transfer of his property is sought to be 360. The marital rights of the husband having at supported by proof of mere verbal promises made to tached, the were promises of the husband to the wife the wife, some of the most material of them twenty to repay ber the various sums of money received by odd years before the making of the deed. him were without consideration, and could form no Mr. and Mrs. Bayne were both examined and re-exground for a valid claim against him. Oswald v. II00 amined as witnesses, and their sereral statements are rer, 43 Md. 368; Plummer and Witc. v. Jurman, 41 id. not in all respects consistent as to the circumstances 637; Sabel v. Slingluff, 52 id. 132, 135.
under which the money was obtained by Mr. Bayne. Such promises amounted to nothing more than mero Their respective statements in regard to the making voluntary agreements to make futuro donations to and delivery of the deed are essentially variant. And
though this may be attributed to the imperfection of uncorroborated testimony of an accomplice. Held, memory, yet it shows the great necessity for caution, that there was other testimony tending “to connect and the danger in proceeding upon such evidence after the defendant with the commission of the crime," such great lapse of time.
sufficient to meet the requirements of $ 399 Code Crim. [Omitting discussion of evidence.]
Proc., probibiting a conviction on the uncorroborated According to the established legal principles, as we testimony of an accomplice. People v. Ryland. Opinhave seen, the money became the property of the hus-ion by Miller, J. [As to coercion see 1 Allen, 4; 2 Gray, band immediately upon its receipt by the wife, as the 510; 11 id. 437; 38 N. Y. 178; 13 Eng. Rer. 453; 42 Vt. law stood at the time. Ilis promises to return it to the 495; 59 Me. 298.—ED.) wife where nothing more than promises to restore [Decided Oct. 28, 1884, affirming 16 W. Dig. 232.] money to her possession, which the law had vested in
TRUST-DECLARATION OF -- STATUTE OF FRAUDShim as his own absolute property; and such promises
PAROL LEASE-SPECIFIC PERFORMANCE-ASSIGNMENT created no legal obligations that could be enforced
LEASE PASSES TO against the husband. At most only the money coming
ASSIGNEE DISTRIBUTION OF PROCEEDS.-If the to the wife after the act of 1853, ch. 245, could be protected from the debts of the husband.
declarations of a party can, under any circum
stances, be received to raise a trust or create Upon the whole this deed, so manifestly in preju
be dice of the rights of the complaining creditors, ought clear and explicit, and point out with certainty the
an interest in lands in another, they must not to stand as against them. The deed is perfectly subject-matter, and the extent of the beneficial inter, good as between the husband and wife, but not as against the subsisting creditors of the husband at the
est. Equity cannot, under any circumstances, compel time the deed was made. The decreo of the court bo
the performance of a parol agreement vague in its low is as favorable to the wife as she could reasonably
terms, and standing upon testimony of the accuracy
of which the witness is himself uncertain. In an acask it to be; and but for a technical objection taken to the frame of the bill, we should simply affirm the defendant R., to have certain real estate in which
tion brought by plaintiffs as judgment creditors of the decree. But the bill is erroneously filed in the name of the State as legal plaintiff, for the use of the parties they claimed R. had an interest charged with the pag
ment of their judgment, the court found that R. being beneficially entitled to the judgments; thus following the form of the recovery at law upon the bond. This
the owner of the land, by procurement of the defend
ant A. F., conveyed to the wife of the latter, by is clearly an irregularity, as the State should not have been introduced as a party; but it is such an irregu
deed, reciting a consideration of $2,300; that as a larity as may be corrected by amendment. We shall
further consideration it was agreed between R. and A.
F. that the former should have the use for three years therefore, without aflirming or rerersing the decree re
of the cellar and first floor of the building to be erected mand the cause that the amendment in the particulars mentioned may be made, and that a decree similar to
upon the premisos. The only evidence upon wbich the one appealod from bo passed by the court below.
the last finding was made was testimony of admissions
made by R. after the conveyance and in the absence of Cause remanded under art. 5, sec. 28 of the Code.
A. F., except the testimony of one witness as to a Yellott, J., dissents.
conversation with A. F. and R., in which the former said he had bought the premises, and that R. was to
have the use for “either several years or two or three NEW YORK COURT OF APPELS 1BSTRACT.
years,” the witness could not say which, as it was out of
his memory. Ilclil, that the evidence was insufficient CRIMINAL LAW-FORGERY— WIFE AS PRINCIPAL to sustain the finding; but if the evidence was suffiPRESUMPTION OF COERCION—EVIDENCE-CODE (RIM. cient to establish an agreement to giro A. F. the use PROC.,$ 399–TESTIMONY OF ACCOMPLICE.—Defendant, of any portion of the premises, it was in the nature of with her husband and another, was indicted for for a lease, and as it was by parol, and for more than a gery in the third degree, in raising a check. It ap year, it was void by the statute of frauds; and that it peared on the trial that defendant suggested the idea was not such a contract as equity would decree perof obtaining the check, and went alone to a store where formance of after the execution of the deed, and beshe procured a check for $6, upon the representation fore the recovery of plaintiffs' judgment. R. made a that she desired to send the money that evening to general assignment for the benefit of his creditors. her sister or mother in Philadelphia, and she could not The assignee accepted the trust, entered upon the perobtain an order at the post-office, as it was closed. formance of his duties, and it appeared that the as. This check she delivered to her husband, who in her signor's debts greatly exceeded his assets.
Ileld, that presence, erased with an acid the name of the payeo if R. was then entitled to a lease, or to any benefit in and the amount. Subsequently, when it did not ap the premises, the right passed to the assignee, and pear that she was present, the check was filled in for the plaintiffs had no claim which they could enforce $165.50, the money was obtained thereon, and $74 of against it. Emigrant Industrial Savings Bank v. that sum paid to defendant. Iteld, that the pridence Roche, 93 N. Y. 374; Spring v. Short, 90 id. 538. If was sufficient to authorize a finding that defendani's such an assignee refuses in a proper caso to proceed participation in the affair was voluntary and imder and get in the assigned property, the creditors colno coercion from her husband, and also was sufficient lectively, or one in behalf of all who may come in and to justify a conviction of defendant as a principal, not join, may compel the execution of the trust in equity. simply as an accessory before the fact. Tho rule un So he could be removed and a more eflicient trustee doubtedly is, that whatever of a criminal nature the appointed, but in either case a decree for a single debt wife does in the presence of her husband is presumed would be orroneous. Nor is it possible for an assignee to be compelled by him (1 Bish. ('rim. Law (7th ed.], by any word or act of disclaimer, to relieve himself $ 359); but this presumption is primin. fucie and not from the obligation to collect the estate and distribute conclusive, and if it apperirs that she was not urged or it according to the terms of the assignment. He is drawn to the offense by him, but was an inciter of it, bound to all the creditors, and their rights cannot be she is liable as well as he. Seiler v. People, pe o N. Y. | varied at his option. If otherwise, a preference might 413; Goldstein v. People, 8? id. 233. (2) The proof as be created when the assignment was silent, and by reto what occurred, after defendant returned with the fusing to sue or enforce a right of property, as the recheck, in reference to the alteration thereof, was thospondent alleges was done in the case before us, an
assignee could permit a favored creditor to absorb the press agreement, both parties will be deemed to have property of the estate and gain priority over others. acted under the obligation of duty imposed by said No doubt the creditor might also sue if the assignee rule. (4) The said rules and regulations are not in conimproperly refused to do so. But if successful, the flict with said act, or the general law of the State, and deoree must follow the assignment, and the fruits of are binding upon the assenting members, and as to the recovery be distributed according to its terms. them have the force of coutracts. Landers v. Franck Bate v. Graham, 11 N. Y. 237; Everingham v. Van. St., etc., Methodist Church. Opinion by Danforth, J. derbilt, 12 Hun, 75; Dewey v. Moyer, 72 N. Y. 70; [Decided Oct. 28, 1884.] Spring v. Short, supra. Tho case of Fort Stanwix Bank v. Leggett, 51 N. Y. 554, cited by the respond. ents, does not aid the plaintiffs. In that case the as UNITED STATES CIRCUIT AND DISTRICT signee was not a party, and no objection was made by
COURT ABSTRACT.:* answer or on the trial, nor did it appear that there were other creditors having an interest in the fund. INTEREST—WIIEN AGENT LIABLE FOR.—Money volHere there are an existing assignment, an acting as umtarily left by a principal in the hauds of an agent signee, and creditors other than the plaintiffs. Crouse lies without interest until some request for it or ucv. Frothingham. Opinion by Danforth, J.
currence changes the character of the detention; but [Decided Oct. 21, 1884.]
when the detention is against right, interest from the ECCLESIASTICAL LAW-ACT OF 1813–PASTOR'S SAL
time when the money should have been paid to the ARY-METHOD OF RAISING.-(1) The provisions of the
principal, at the rate fixed by the law of the place Act of 1813, ch. 60, $ 48, providing “for the incorpora
where it is detained, is chargeable to the agent. Cir.
Ct., S. D. N. Y., Sept. 9, 1881. Bischoffsheim v. tion of religious societies," which prescribe the method of fixing the salary to be paid to a ininister of
Bultzer. Opinion by Wheeler, J. & corporation organized under it are exclusive and im NEGLIGENCE —WHARVES-OBSTRUCTIONS – SUNKEN ply a prohibition of any other method. It is obvious PILE-DAMAGE TO VESSEL-LIABILITY OF OWNER AND from an examination of the record that there was no OCCUPANT.--A coal merchant having by arrangement compliance with any of these provisions, and upon a with a railroad company, the owner, obtained the exformer trial a nonsuit had been granted for that rea clusive use of a wharf and of the slip adjoining, for the son. It was denied upon this occasion in deference purpose of receiving coal upon cars of the company, to the decision of the General Term, by which the non and of thence selling and shipping the coal on board suit had been set aside (15 Ilun, 310), and a ruling vessels that he procures to come to the wharf to receive made that notwithstanding the statute it was com it, paying the company a fixed sum as wharfage for all petent for the parties to make the contract in such coal thus sold and shipped, is liable for the damages other manner as they saw fit. We think such a con to such vessels occasioned by a sunken pile near the struction destroys the efficacy of the act. It removes wharf, after notice of the existence of the obstruction the check which was intended to be put upon the and of its dangerous character, the vessel having been power of trustees (Petty v. Tooker, 21 N. Y. 267), and directed to more over the dangerous spot by his gentakes from the select body of corporators (People v. eral superintendent. The John A. Berkman, 6 Fed. Rep. Tuthill, 31 N. Y.550), who were considered by the Leg- 535; Christian v.Van Tassel, 12 id. 881: Swords v. Edgar, islature the proper persons to deal with the matter, 59 N. Y. 35; Leary v. Woodruff, 1 Hun, 99; ('amnaran and so were authorized to determine the amount of v. Couklin, 1 Daly, 509; Carleton v. Franconia, etc., salary to be paid, the power to do so, by conferring it
Co., 99 Mass. 216. The liability of the company as upon the congregation at large, and leaves the evi owner for the same damage, if prored, would be no dence of the obligation to be determined by parol evi defense to the several liability of the occupant of the dence, rather tban the written instrument upon which wbarf. Dist. Ct., S. D. N. Y., July 26, 1881. Onderthe statute authorizes payment to be made. When a donk v. Smith. Opinion by Brown, J. statute corers the whole subject, and prescribes the CONSTITUTIONAL LAW-CONTRACT TO CONSTRUCT persons who may bind a corporate body and the man
RAILROAD — ULTRA VIRES-RESCISSION EQUITABLE ner in which they may bind it, resort cannot be had to
INTERFERENCE. - The Constitution of the State of other instrumentalities. The designation of certain
Pennsylvania provides that “no corporation shall issue agents and methods for the doing of an act implies a
stocks or bonds except for money, labor done, or prohibition of any others. People ex rel. Atty.-Gen.
money property actually received; and all fictiv. Utica Ins. Co., 15 Johns. 357; New York Fireman's
tious increase of stock or indebtedness shall be void.”' lus. Co. F. Ely, 2 Cow. 678; Crocker v. Whitney, 71 N.
An incorporated railroad company of that State enY. 161; Donovan v. Mayor, 44 Barb. 180. Accordingly,
tered into a construction contract whereby the conwhere the salary of a minister of a Methodist Episco
tractor agreed to furnish all the materials and do all pal church was fixed by the quarterly conference, in
the work necessary to construct the company's road, stead of as prescribed by said act, held, that no con
at an expenditure however not exceeding $200,000; and tract obligation was imposed upon the church, and
in consideration thereof the company agreed to issue that an action was not maintainable against it to re
to the contractor $300,000 of its capital stock as fully cover a balance unpaid of the salary so fixed. (2) Un-paid up, and $300,000 of its first mortgage bonds. The der the rules and regulations of the “Methodist Epis
materials could be furnished and the road built for copal Church of the United States,” enacted by its
$180,000 cash. IIeld, that the contract contravened the general conference, no contract relation exists between
constitutional provision, and was ultra vires and void. a society belonging to tha: church and its minister.
There can be no doubt that a court of equity may enThe society is simply a contributor to a general fund
tertain a bill to aroid a contract of a corporation raised by voluntary not enforced contributions, for
which it had no power to make. Aubury Academy v. the support of ministers, and no implication arises of
Strong, fIopk.(NY. (h.) 278. And constructive fraud ang promise on its part of compensation to the minis
involving a breach of trust or an abandonment of duty, ter assigned to it, from the fact that service is rendered
or a violation of public policy, is a recognized ground for by him and received by the society. The minister equitable interposition for the cancellation of agreerenders service not upon an agreed salary but upon an
ments. 1 Story Eq. Jur., $ 694. Where there is fraud allowance for support to be paid from such general fund. (3) In the absence, at least, of some valid es
*To appear in 21 Federal Reporter,