« EelmineJätka »
only means left of intercepting these funds from waste he is to be paid. But there is no principle of equity and dissipation, and of securing them for distribution which confines these suits to any one class of cases. pro rata among creditors.
As society advances, and its methods of business unThe bill in this case is addressed to the condition of dergo change, equity will adapt its relief to the changed things which has beeu described. It is not a bill such condition of thiugs. This is an old privciple of equity. as a creditor usually files in his own interest for setting Indeed equity jurisprudence originated in the necesaside an assignment on the ground that it was made sity of applying new remedies to evils previously unto hinder, delay, and defraud creditors. In almost all known to the law. the States of the Union a bill for that purpose can The case we are now dealing with is novel and peonly be brought by a creditor who has obtained a culiar; but the present proceeding is as old as equity judgment or decree for his claim. In such a case the itself. This is not a bill to set aside a deed. It is true grantee in the deed complained of has a lien by force that the dedication of assets which has been mentioned of bis deed, and the courts refuse to allow this deed to is objectionable in the particulars I have heretofore be assailed except by a creditor whose claim is equally described; and this bill may be considered as one as well authenticated. This creditor is required to brought under section 2 of chapter 175 of the Code of bave established a lien, and to show that he is without Virginia to set it aside, that provision of the Code alpower to make it good, before assailing the deed of his lowing bills of the sort to be brought by creditors who debtor. His bill is “in execution” of his judgment or have not obtained judgment or decree, and have not decree. Even such a creditor is not permitted to set established specific liens. But while in this view of aside the deed except upon proof not only that it is the case I feel perfectly safe on the score of jurisdiofraudulent, but that the grantee had notice of the tion, I prefer to regard the present bill as a creditors' fraud at the time of receiving it. If he can show these bill of the kind described by the text writers, Mr. Wait facts, then the creditor, in the decree setting aside the and Mr. Barbour. deed, is paid his full claim out of the property fraudu It was such a bill as this that was filed in the case of lently converted in preference to other creditors. I Finney v. Bennett, 27 Grat. 365. The assets there adfully concur in all the propositions of law amounced ministered were those of an insolvent bank owing sevby counsel for defendants in respect to bills of this eral classes of creditors. The case was decided in Circharacter brought by individual creditors, in their in cuit Court by Judge Wingfield, who in answer to obdividual interest, praying relief for themselves indi-jections of jurisdiction similar to those urged in the vidually. As against such creditors the assignment of case at bar, delivered an opinion which was adopted a debtor is good, whether giving preferences or not, if as its own by the Supreme Court of Appeals of Virginia made bona fide, and if free froni provisions from which when the case was taken there. IIo assimilated the the law in its policy pregumes fraud.
suit to a creditors' bill brought against the estate of a But in the present case the creditor asserts no in decedent insolvent debtor in the hands of his personal dividual lien, claims no individual preference, and representative. If creditors were left to sue individusues for all creditors. It is a creditors' bill, sometimes ally, each would obtain a preference, to be paid in full called an omnibus bill, being a bill for all. It is not according to the dates of their respective judgments, a directed at property alone, or property fraudulently few getting their whole debt, many getting nothing at appropriated within the purview of the statute of all. The object of the bill was to prevent such a scramElizabeth; but it is directed at all the assets of the de ble and to secure a pro rutu distribution to all. Tho fondants, as well that existing in the form of tangible court said: property as that in the form of open accounts, notes But it may be objected there is no precedent for due, and choses in action generally, for the ingather such a case. ('oncede this. Yet it does not follow ing of which a receiver is necessary. Mr. Wait, citing that when a case arises which comes within the princiabundant authority, says of such a bill:
ples of its Constitution and ordinary jurisdiction, the “It may be asked in what respects a creditors' bill court ought not to take cognizance of it because it is a differs from an ordinary bill in equity prosecuted to new case and not to be found in the reports. cancel a covinous conveyance. The answer is that An eminent recent chancellor of England has declared the creditors' bill is broader and more effectual in its that “it is the duty of every court of equity to adapt operation and results. The ordinary bill in equity is its practice and course of proceedings, as far as possigeuerally brought to unravel some particular transac ble, to the existing state of society; and to apply its tion and to annul some particular conveyance. A jurisdiction to all new cases, which from the progress creditors' bill is, on the other hand, usually in the na daily making in the affairs of nien must certainly ture of a bill of discovery, and more extended in its arise.' Lord ('ottingham (Taylor v. Sulmon, 4 Mylue results; not only does it reach property described & C'. 141." therein, but by means of this remedy every species of The Supreme ('ourt of Appeals of Virginia expressed assets and eren debts due the debtor, of which the its entire concurrence in this opinion, and adopted it creditor knows nothing, may be reached through the as its own, adding: “What more suitable case could instrumentality of a receiver and applied to the claim.” there be for a creditors' bill, aud the application of the Wait Fraud. Conv. 103, 101, and note.
rule of equity, that 'equality is equity ?' If there be In 2 Barb. Ch. Pr. 149 (a work written under the eyo no case directly in point, it is the province of a court and under the correcting hand of Chancellor Wal. of equity to provide suitable and adequate remedy for worth, and as useful as authoritative), the author de such a case; "and the court repeated the quotation scribes a creditors' bill as “a suit brought for the ad from Lord ('ottingham. It also cited Ogilvie v. Knox ministratiou of assets, to reach property fraudulently Ins. Co., 22 Ilow. 380, in which the l'nited States Sudisposed of, etc. The bill in such cases is filed in be. preme ('ourt held that a court of equity may, at the balf of the complainant and all others standing in a suggestion of creditors that a corporation is insolvent, similar relation, who may come in under such bill, and administer its assets by a receiver, and thus collect all the decree to de made. It may be filed by simple con subscriptions or debts due the corporation. tract creditors, and does not require a judgment to We are not therefore without precedent for the preshave been obtained."
ent suit. This is not merely a creditors' bill praying It is true that creditors' bills are usually employed to injunction, receiver, and payment of all creditors pro settle up decedent or other estates, and to prevent a ratu, but is, as to complainants, a bill founded upon a multiplicity of suits by creditors,each eager to establish particular equity entitling them to a standing in court. by suit a priority of lien upon the assets out of which The bill would have been the same as many others
clause requiring the consideration requiring the consideration to be expressed in writing, was not to destroy or annul the requirement that the writing must contain all the substantial and material terms of the contract. The writing, so far as the same is executory, must still show
on its face what the whole agreement is. E. N. Bank v. L'auf'man, 93 N. Y. 273, distinguished.
with which the courts are every day occupied, if the defendants had done by deed what they are doing without deed. If in the case of a deed the court would have interposed to prevent the acts of defendant, how can it be contended that the mere absence of a deed deprivesit of jurisdiction and divests complainants of a redress which a court of equity only can give? It is an old principle that a court of equity will interpose to prevent what it would afterward uudo. Roberts Fraud. Conv. 5:20. If defendants, by doing without making a deed what equity would undo if a deed had been made, can thereby deprive equity of jurisdiction, tben creditors would be at the mercy of fraudulent debtors, and the courts would be set at defiance. Aside from this view, complainants have special equities in this case. They are the largest creditors of defendants. They have no security that if they accept the proposition of compromise, which they are willing to do, its terms will be complied with. Defendants offer, and I presume can give, no security, either in the persons of indorsers or in any other form, that they will fulfill their part of the compromise. Notwithstanding this inability, they are themselves ad. ministering the assets which they have dedicated to their creditors, and in a manner necessarily involving waste, and incompatible with the purposes of the trust. They offer, and I presume can give, no bond for properly administering these trust assets. There is but one mode in which complainants can insure the application of these assets to the purposes of the trust imposed upon them, and that is by the intervention of the court through the instrumentality of a receiver and an injunction. This is what they ask. Is not the court bound to give them the security of a responsible and judicial administration of the trust fund?
It is laid down as a general principle that if a trustee becomes insolvent and compounds with his creditors he may be removed; and this is on the ground that the cestui que trust has a right to have the trust administered by responsible trustees. 1 Perry Trusts, $ 279. A man who has a common interest with others in a trust fund or trust estate is entitled to sue on behalf of himself and others for the protection of the property by injunction, when the property is in the hands of an insolvent. Kerr Inj., citing Scott v. Becher, 4 Price, 346. When the act complained of would, is done, be irremediable, the court will interfere as a matter of course, and take property out of the hands of irresponsible parties misapplying it. A bill will lie and injunction be granted in the case of a surviving partner who is embarrassed and is misapplying the funds, to restrain him from disposing of the assets. Ilarte v. Schrader, 8 Ves. 318
In this case the injunction was given but a receiver refused. In the similar caso of Read v. Bouers, 4 Brown (Th. 111, au injunction was granted and a receiver appointed. There was no question of the jurisdiction of equity to interfere in either case.
On the whole I have no doubt of the power of the court to entertain this bill, and to grant the relief for which it prays. I think also there is necessity for the intervention of the court in this matter by granting a preliminary injunction, and by appointing a receiver; and I decree.
Second Department, reversing a judgment in favor of plaintiff, entered upon the report of a referee.
This action was brought to recover damages for alleged breach of the contract of employment.
Defendants were manufacturers of milk cans, doiug business under the name of “Iron-Clad Can Co." Iu January, 1875, the parties entered into negotiatious, which resulted in an oral agreement that plaintiff would enter into defendants' employ as a salesman, and serve in that capacity for three years. Defendant Shepard thereupon wrote the following memorandum, which he gave to plaintiff: * (Preserve this.)
Memorandum Iron-Clad Can Co. “Two thousand dollars for first year.
“Two thousand and five hundred dollars for the second year sure, and provided the increased sales shall warrant it, he is to have $3,000. “Third year in proportion to business as above.
“IRON-(LAT) Can ("0.,
“H. W. SHEPARD.” The plaintiff took the memorandum home, and on Tuesday following wrote and mailed to the defendants a letter in the following words:
“UTICA, Jan. 12, 1875. “ Iron-Clad Can Co., or Il. IF. Shepard :
“I accept your proposition of the 9th inst., and will we in New York on Monday next to couimience (perations.
"JOHN DRAKE." Plaintiff went to work under the contract, and continued in defendants' employ until about January, 1878, when they refused to employ him or to pay him. Plaintiff tendered his services, and remained ready and willing to perform them during the year.
M. NI. Waters, for appellant.
FINCH, J. The court below has defeated the plaintiff upon the ground that his cause of action rested upon a contract which, by its terms, was not to be performed within one year, and which was rendered void by the statute of frauds for the want of a sufficient note or memorandum. That determination is challenged on this appeal, and it is contended on behalf of the appellant that the memorandum was sufficient, for the double reason that no integral or material part of tho agreement was omitted, but if it was, the omission was only of the consideration, which ander the statute no longer needs to be expressed. It will be convenient to consider the last proposition first, since if it is sound it determines this appeal.
Before the Revised Statutes went into effect the consideration of an agreement within the statute of frauds was required to be stated in the memorandum.
In the early case of l’ain v. Walters, 5 East, 10, this was put upon the ground of a distinction between the word “agreement” and the word “promise" as used in the statute; but later upon the proposition that the memorandum should contain within itself all the elements of a complete cause of action without the need of resort to parol eridence. Saunders v. V akefield, 4 Barn. & Ald. 695. Thereafter the courts in this State admitted and enforced that rule (Seurs V. Brink, 3 Johns. 211; Kerr v. Shuw, 13 id. 236), but held the
STATITE OF FRAUDS-JEJORANDUI.
NEW YORK COURT OF API’EALS, NOV. 25, 1884.
DRAKE V. SEAMAN. The effect of the amendment of the provision of the stat.
ute of frauils, declaring certain contracts invalid unleys in writing (act of 1863, ch. 16-1) which struck out the
memorandum sufficient if its language so indicated material terms of the contract between the parties. It the consideration that it could be argued out or in must show on its face what the wholo agreement is so ferred, and very much of uice criticism and narrow far as the same is executory and remains to be perdistinction followed as a result. Rogers v. Kneeland, formed, and rests upon unfulfilled proniise. 10 Wend. 251; 13 id. 114. The Revised Statutes sought Down to the amendmeut of 1863 vo case wandered to remedy the difficulty by an amendment requiring from that rule, so far as we have been able to discover; the consideration to be expressed, but the question and since that date it has been restated and enforced whether in each caso it was expressed, or what was a in this court. sufficient expression, led to renewed and continual In Neubery v. Il’all, 65 N. Y. 481, a letter admitting litigation. It was soon held that the words “for
the purchase of goods by the writer from the person value received" were enough to satisfy the require to whom it was written was held to be an insufficient ment (Miller v. Cook, 23 N. Y. 495), and in 1863 the note or memorandum, because it did not " express any Legislature struck out the clause, and restored the consideration or terms of the purchase,' "and it is section to its old form.
impossible to say from the contents of the letter what But in all the current of authority in this State pre the contract ir fact was.” vious to the final amendment, it was steadily ruled And again in Stone r. Brouning, 68 N. Y. 604, Rathat the memorandum must contain the whole agree pallo, J., said of a similar letter admitting the agreement, and all its material terms and conditions, not ment to purchase: “It does not state the price or any indeed in detail and with absolute precision, but sub of the terms of the contract. These deficiencies canstantially, and so that one reading the memorandum not be supplied by oral evidence. All the essential could understand from that what the agreement really parts of the contract must be evidenced by the writ
ing.” Now those essential parts cannot be omitted, In Wright v. Ieeks, 25 N. Y. 159, which preceded because in addition to constituting such material elethe amendment of 1863 but a few years, that doctrine ments, they constitute also a consideration of the conwas declared in very strong terms, and as decidedly tract. The agreement of the defendant in this case settled. But the change of 1863 has given rise to a new was not merely to pay so much money to plaintiff. It question, and bred in the courts a wide difference of was to pay him that money for his services as salesopinion.
man to be thereafter rendered. For what the payIn Speyers v. Lambert, 6 Abb. (N. S.) 309, the Gen ment was to be made constituted a material and esseneral Term of the Superior Court held that the effect of tial element of the agreement on the part of the destriking out the clause requiring the consideration to feudant; an important condition of the contract on be expressed was not merely to restore the law as it his side. His agreement was not absolute to pay the was before the words were inserted; that is to say, that money. It was conditioned to the rendition of the the consideration must appear in the agreement, but stipulated services. Any memorandum which omits might be argued out or inferred from its terms; but the condition falsifies the agreement which he actto go further than that, and make wholly and entirely | ually made, and represents him as agreemg to pay the unnecessary any statement of the consideration at
money absolutely when he did not so contract. It is all. That was said however in a caso where the con no answer that the omitted condition, coupled with sideration was rendered at the moment in which the the other party's promise of performance, constituted contract took effect, so that such contract was execu a consideration for his own agreement, and so need not tory upon one side only, and not upon both.
be es sed. The exact contrary of this construction was held in If we were to grant that, and follow Speyers v. LamCastle v. Beardsley, 10 Ilu, 313, and the remark of bert to its full extent, it would only justify an omisBingham in his work on Contracts for the Sale of Real sion from the memorandum of plaintiff's promise to Property (363) was cited with approval, that "it is cer perform the services, and not of defendant's condition tainly a singular way of construing a statute that has modifying and limiting and measuring his own prombeen once amended, and then again amended by strik ise. As in the cases last cited in our own reports, the ing out the amendment, to mean something different agreement was not an absolute agreement to purchase from what it did before it was amended at all."
irrespective of price, but to buy at an agreed and What was said in Evansville National Bank v. Kauf- specified price, so here the agreement was not an ab. man, 93 N. Y. 273, was not intended at all to decide solute agreement to pay so much money, but to pay it the question upon which the courts have thus differed. upon condition that certain specific services were renThe guaranty there was special, and without consid dered. And if we conceded that the cousideration eration in fact, and the question now under discussion might be wholly omitted from the men orandum, it was not before the court. Very early it was doubted would still be requisite that all the essential and mawhether the amendment of 1830 at all changed the law terial elements of defendant's own agreement should (Church v. Brown, 21 N. Y. 3:31, per Comstock, J.), be stated, and they are not stated where the very conand it is extremely difficult to answer the logic of the dition upon which he is to pay at all is omitted, and doubt. In that view of the subject neither amend the subject-matter of his agreement is absent. went changed the law, and the presence or absence of And that brings us to the question whether the the omitted clause was alike immaterial. But if the memorandum on its face stated the actual contract amendment of 1830 worked any change, it was more which the defendant made; or whether from the than this: that the consideration sbould no longer be memorandum we can determine what the real conimplied from the language of the instrument, but tract between the parties was. The actual agreement should be expressed in it. Brewster v. Silence, 8 N. Y. was that the defendant would pay yearly the sums 413. And the subsequent omissions of the inserted specified in the memorandum for the services of the clause would seem only to indicate a legislative intent plaintiff as a salesman, to be rendered for three years, not to require a definite expression of consideration, and the inquiry is whether that contract is stated in and leave the contract good if one could be implied or the memorandum. The writing begins with the words inferred from its terms. Reed Stat. Frauds, $ 123. “preserve this,' and continues thus: “The underBut whatever else may be said of the amendment of standing with Mr. Drake is as follows: $2,000 for the 1863, we are quite sure that it cannot be understood to first year; $2,500 for the second year sure, and provided destroy and annul the requirement that the note or the increase sales shall warrant it, he is to have $3,000. memorandum must contain all the substantial and Third year in proportion to business as abore."
On the face of this writing the contract of the de suspension his membership shall be disposed of * fendant with its essential terms and conditions does and the proceeds paid pro rata to his creditors in not at all appear, unless we yield to the construction the Stock Exchange," excluding howerer from the disvery ingeniously suggested and forcibly argued on be tribution claims not filed before a trausfer of the right half of the appellant, that the words “for the first of membership, and any difference “growing out of a year mean for the first year's time of the plaintiff, claim on a put or call, notified for and reduced to a and so on through the other stipulations. It is said contract after failure.” W., plaintiff's assignor,a memthe word “year” means a period of time, and must be ber of the Exchange, failed, his seat was sold under held to refer to the plaintiff's time, using that word in the rules, and claims of members were filed and proved the sense of services, and the construction is sought to to more than the proceeds of sale. All of such be strengthened by parol evidence, showing that claims howover were on puts and calls, notified for plaintiff was a salesman and defendants manufac and reduced to a contract after failure. In an action turers. There are no technical or ambiguous words in to recover such proceeds, held, that plaintiff was entithe memorandum requiring explanation,and we cannot tled to recover; that it was immaterial whether such resort to parol evidence to insert in the writing what contracts were valid or not, but that W., by the laws is not there. Wright v. Weeks, supra.
of the association, becoming a member, assented to an Confining our attention to what the memorandum appropriation of his property in a particular way and says, we observe that its language is equally applicable to certain debts to the exclusion of all others, and no to many contracts entirely different from that actually appropriation could be made to which he had not in made. Although plaintiff is a salesman, he may have like manner assented. Also held, that provisions of invented or purchased a patent valuable for the use of said constitution, giving the governing committee of the defendants, and bargained to give them that use the Exchange all powers necessary for its control, for three years, in return for which plaintiff was to making its decisions final, declaring that all debts withhave " $2,000 for the first year; $2,500 for the second out distinction shall be binding on members, and givyear sure, and provided the increase sales shall war ing said committees cognizance of them, did not make rant it, he is to have $3,000. Third year in proportion a decision of said committee, admitting the claims so to business as above."
proved to share of the proceeds, final; that the comOr the plaintiff may have rented to the defendanis mittee could have no power to admit a claim which a store or factory for three years, and the memoran the constitution by its terms excluded. Weston v. dum recited the rental. And so the illustrations might Iles. Opinion by Danforth, J. be multiplied. Nothing in the writing indicates which [Decided Nov. 25, 1881.] of all the possible contracts was intended, or identifies
INSURANCE-FIRE-EVIDENCE THAT FIREWORKS the one really made. To a person depending wholly
WERE PART OF STOCK-CERTIFICATE OF NEAREST NOupon the writing, the real contract made is impossible
TARY-ACTION DOES NOT ACCRUE UNTIL NEGOTIATIONS to be ascertained. And here comes in the difficulty against which the statute was aimed. İf the memo
CLOSET).—(1) Defendant issued to plaintiffs, who were
doing business in the city of Buffalo, a policy of fire randum be held suflicient, any falsehood or perjury on
insurance 01 store, furniture and fixtures" in a the part of plaintiff might apply it to an agreement never made or thought of, and against that the memo
building In that city, “to be used by the assured as a
fancy goods and Yankee notion store.” The policy randum would not furnish the least protection. And
contained a condition in effect that in case the propthere is a further difficulty as to the third year, which is the only one here in controversy. Precisely what
erty should be used for storing or keeping therein any the final clause means it is not easy to say.
articles, or for more hazardous purposes than that
It does not provide in terms for any fixed salary, but makes
called for by the original contract of insurance, unless the payment dependent upon the business in propor
specially prorided for, or thereafter agreed to by de
fendant, or if, during the existence of the policy, the tion to the rates above stated. No evidence was given
risk should be increased by occupation of the premises showing the amount of business. We cannot holil this
for more hazardous purposes, unless notice thereof memorandum sufficient without a dependence upon
was given to defendant, and its consent in writing inparol evidence, which would practically nullify the
dorsed, the policy would thereby be rendered void. statute, and since wo have held that one party may bo
In the classes of hazard forming part of the policy, bound by his signature, while the other party, not
fancy goods and Yankee notions were classed as signing it, is not bound at all (.1lason v. Decker, 72 N.
tra-hazardous," and fireworks as “specially hazardY. 595), it becomes very important for the party who
Over the latter class was printed a statement does sign and is bound, that the rule should be firmly
that the merchandise specified therein “ to be covered adhered to which requires the real contract to be
must be specially written in the policy.” In an action stated with its substantial terms and conditions. We
upon the policy it appeared that at the time of the fire therefore agree with the conclusion of the General
plaintiff had in the storo a stock of fireworks; no noTerm.
tice of intention to keep them had been given defendThe order of the General Term should be affirmed,
ant or assent on its part obtained. Plaintiff was aland judgment absolute rendered for the defendants,
lowed to provo, under objoction and exception, that with costs.
fireworks constituted an ordinary, usual and recogAll concur except Rapallo, J., absent.
mized portion of a stock of fancy goods and Yankee noOrder aflirmeil. tion store. Itell, no error. Pindar v. Kings Co. Fire
Ins. ('0., 36 N. Y.018; Steinbach v. Lafayetto Fire Ins. NEW YORK ('OURT OF APPEALS ABSTRACT. (0., 54 id. 90. The evidence was sufficient to justify
the referee's findings in accordance with it, even if it CORPORATION-NEW YORK STOCK EXCHAXGE is considered -- as the appellant claims it should be — MEMBERS BOUNT) BY CONSTITUTION, ETC.-SALE OF as relating only to the city of Buffalo and its vicinity. SEAT-PROCEEDS TO CREDITORS IN EXCHANGE.-The The subject of the insurance was at that place, and provisions of the constitution and by-laws of the New the underwriters knew, or ought to have known, the York Stock Exchange are obligatory upon its mem usage and course of business in connection with which bers as a contract. By said constitution it was pro the polioy was issued, and must be assumed to have vided that “if any suspended member fails to settle made their contract with referonco to it. There was with his croditors within ono year from the time of his then no breach of any condition of the polioy, and the
plaintiff established a cause of action. (2) The appel- granted in said action directing a sale, and upon the lant objects to its enforcement however upon tbe sale Hull became the purchaser, received a deed, and ground that although the plaintiff produced the cer executed the mortgage in suit. The judgment of tificate of a votary public due form, “he was not foreclosure was in tho usual form, no provision being the notary referred to in the policy, because he was not made for a sale subject to the rights of the children the one most contiguous to the place of fire.” It ap of the testator's living children, or reference thereto. peared however that proofs of loss were given in due Held, that the court had jurisdiction of the subjectseason, and objections upon various grounds inade to matter of the partition action and of the parties, and their sufficiency. The notary in fact resided within if it determined incorrectly in awarding to the plaint400 feet of the fire, and no defect in this respect was iff a relief to which she was not entitled, the error pointed out until after the commencement of the ac should have been corrected on appeal. Blakeley v. tion. It was then too late. O'Niel v. Buffalo Fire Calder, 15 N. Y. 617; Howell v. Mills, 56 id. 226; SulliIns. Co., 3 N. Y. 122. As regards the defense that the van v. Sullivan, 66 id. 40. The purchaser bought with action was not commenced iu time, the learned coun notice that the rights of the children not made parsel for the appellaut concedes that the time to bring ties to the partition were outstanding, and subject to the action did not expire until February 13, 1880. The those rights, paying a less amount, because buying a referee found in fact that it was conimenced on the less estate then the wbole. What could pass by the 28th of January of that year. Upon the facts stated it foreclosure sale was what purported to be sold, and can hardly be pretended that the application now must have been so understood by the purchaser. No sought to be made of the condition in question is either wrong is done in requiring him to pay for exactly what just or honest,” and it is said that in such case only he bought. An amendment of the decree was unnec"should it be permitted to defeat a recovery.” Mayor essary. It furnished as it stood adequate authority for v. Hamilton Fire Ins. Co., 39 N. Y. 45; Hay V. Star the sale of the property covered by the mortgage, and Fire Ins. Co., 77 id. 235. Nor does it apply except as that did not cover what the mortgagor did not have, where the proofs of loss were originally complete, aud the sale as made was consistent with the decree. Bereceived without objection (Ames v. N. Y. UnionIns. fore the partition suit it is said the widow gave to the Co., 14 N. Y. 254), nor where the delay is occasioned New York and Boston Railroad Company a right to by the demand of underwriters for other particulars. enter upon the land and maintain its road. That was Mayor v. Hamiltou Fire Ins. Co., supra; Ames v. dated July 19, 1871, but not recorded until 1882. It Union Fire Ins. Co., supra; Hay v. Star Fire Ins. Co., does not appear that the partition suit was actually supra. See also Steen v. Niagara Fire Ins. Co., 89 N. later than the lease, nor that the purchaser under the Y. 315. Barnum v. Merchants' Fire Ins. Co. Opinion decreo had any notice of its existence. That purby Danforth, J.
chaser, while furnishing aslidavits for the present pur[Decided Oct. 31, 1881.]
chaser, does not say that he had such notice. The suc
cessor of the Boston road was not made defendant in AGENCY-LIEN OF AGENT FOR ACCEPTANCES. - Where tho foreclosure suit, and holds a deed from Ilull, who a principal consigns goods to an agent to sell under an
was also such defendant. Cromwell v. Hull. Opinion agreement that the latter will accept bills drawn upon
per Curiam. him by the former to the amount of goods so con
[Decided Oct. 31, 1884.] signed on hand, it is a necessary inference that the drafts are to be drawn on the credit of the goods; and to the amount of acceptances outstanding, the agent NEW JERSEY COURT OF CHANCERY ABhas a lien on the goods in his hands, as security, and
STRACT.* is entitled to retain the game until the acceptances are paid. The law implies or infers the lien from the re RECEIVER-INSOLVENT RAILROAI) — LIABILITY ON lation between the parties. 1 Pars. ('ont. (5th ed.) 98; CONTRACT OF PREDECESSOR.—The petitioners claimed 3 id. 259; Holbrook v. Wight, 24 Wend. 169; Bank r. to have supplied the former receiver of an insolvent Jones, 4 N. Y. 497. That there may be no misappre- railroad, appointed by this court, with large quantities hension, it may be added that if there was an agree of materials for the use of the railroad. They applied ment that the defendants should apply the proceeds for an order directing the present receiver of the railof goods sold to the payment of drafts as they ma road to pay for those materials, and also for an order tured, then so far as they had such proceeds in their
giving them leave to sue him at law for the damages hands applicable to that purpose, they were bound to which they allege they have sustained at his hands by apply them to that purpose; and they could not hold reason of his non-fulfillment of his predecessor's conthe goods as security against drafts which they could
tracts with the petitioners for other materials similarly thus pay, and were bound to pay; and in such case supplied. lleld (1), that this court, before granting the plaintiff, after paying the drafts, so as to leave out the petition, would by a preliminary examination of the standing an amount no greater than such proceeds, transaction, determine whether the matter cannot be could claim and take the goods from the possession of disposed of here; (?) that the present receiver is not the defendants. Nagle v. AlcFeetcre. Opinion by as such liable to be sued at law on the contracts of his Earl, J.
predecessor; and whether tho railroad property is [Decided Oct. 31, 1881.]
bound by the contracts of the former receiver, is a
question of which this court has exclusive jurisdiction. JUDICIAL SALE-PURCHASER COMPELLED TO PER Palys v. Jewett, 5 Stew. 302, distinguished. Lehigh FECT TITLE. –This was an action to foreclose a mort
Coal & Nar. Co. v. Central R. Co. Opinion by Van gage executed by the defendant Hull. One Lynt died
Fleet, V. (. in 1855 seised of the premises in question, leaving a will by which he devised said premises to his widow
EVIDENCE-INCOMPETENT WITNESS-WAIVER OF OBso long as she should remain unmarried, and upon her
JECTION-RIGHT OF COCRT TO SĽPPRESS ILLEGAL.-(1) death or remarriage he devised his same to his fire
If a party against whom an incompetent witness is children, and in case of the previous death of any of
called, with full knowledge of his incompetency, allows them, to their issue. The widow brought partition,
the witness to be sworn and examined without objecmaking the surviving children and the issue of one de
tion, he will be considered to hare waired the objeo. ceased child of the testator parties; the issue of the
tion to his competency. Berryman r. Grabam, 6 C. Eliving children were not made parties. A decree was
* To appear in 38 N. J. Eq. Reports.