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Hatch v. Vt. Central R. Company.

have not required compensation to be made in a case like this, for consequential damages, the plaintiff must be without redress so long as the company keep within their powers, and are not guilty of negligence or a want of care in the exercise of their powers under their charter. Testimony, then, to be admissible, should tend to show that the company have exceeded their powers, or have been negligent in the exercise of them. The offer made to Gov. Paine, the president of the company, by the street commissioners, to fill up the streets adjoining the railroad and the plaintiff's bakery, and the reply of Gov. Paine to it, was properly excluded. It had no bearing upon the question of negligence in the defendants while engaged in the execution of their powers, and besides, the declaration of Paine would not be evidence against the company, unless made by him relative to something within his agency.

We see no good objection to the admission of a certified copy of what purports to be a location of the road, from the records of the town of Burlington. It is not stated for what purpose it was offered, or for what purpose it was admitted.

It is clearly evident that such a paper was on record, and the jury must have found, under the charge of the court, that the defendants have constructed the road, and have ever since used it. If it was necessary for the defendants to prove a location, this was proof enough of it; and the theory of the plaintiff's action goes upon the ground that the road was located in the very place where it now is, and the complaint is, that the location and the construction of the road were both improper.

The judgment of the county court is affirmed.

Sherman v. Blodgett.

EBENEZER SHERMAN v. LUTHER P. BLODGETT.

Evidence.

A witness may be inquired of, and may testify as to his opinion respecting the sol

vency of a person, when he has stated the facts and means of knowledge upon which his opinion is founded.

ACTION ON THE CASE against the defendant for having, as sheriff, taken insufficient bail on mesne process. Plea, the general issue; trial by

November Term, 1855,-PIERPOINT, J., presiding.

The plaintiff having made out a prima facie case, the defendant introduced testimony to show that the bail was sufficient at the time it was taken. A witness stated that the bail, at the time of the service of the writ which the bail endorsed, owned certain real estate and personal property, which he described, and his means of knowing the then situation and circumstances of the bail. The counsel for the defendant then asked the witness what, in his opinion, from his knowledge of the said Ahira, (the bail,) and his affairs, was the value of said Ahira's property over and above what he owed, at the time the defendant served the writ? To the question so put by the defendant's counsel, the counsel for the plaintiff objected. The objection was overruled by the court, and the witness answered the question, to which decision the plaintiff excepted.

D. A. Smalley and C. Linsley for the plaintiff.

J. Maeck for the defendant.

BY THE COURT. We have no doubt the evidence objected to was properly admitted.

The solvency of an individual is a matter resting somewhat in opinion ; and, in the present case, the witness had stated what property the bail owned at the time he entered bail, and his means of knowing the situation and circumstances of the bail; certainly there could then be no objection to his giving his opinion from his knowledge of the bail, and of his affairs, what he thought he was worth.

Judgment affirmed.

Merrill et als. r. Englesby, Tr.

MERRILL, TOWNSEND & BOYNTON v. LEVERETT B. ENGLESBY,

trustee of JACOB C. HAWLEY; ASAHEL PECK AND OTHERS claimants.

Practice. Void, or inoperative and defective assignments ; how remedied.

Trustee process. Statute of frauds,

Upon exceptions to a decision of the county court in reference to the liability of a

person summoned as a trustee, by which his disclosure is made a part of the care, and no evidence appears to have been introduced in contradiction of it, the statements contained in the disclosure will be regarded as facts found by the county court.

An assignment which is defective, on account of its containing a resulting trust

before providing for all of the assignor's creditors. may be remedied by a rew assignment, and probably, without re out to a new assignment, by a mere declaration of trust in favor of all of the creditors.

The word "void" in the act of 1843, declaring certain general assignments void, &c.,

construed as implying only in operative or voidable.

An assignment which is inoperative under that statute, on account of its generality,

may be cured by a new assignment, less general, in which a substantial portion of the assignor's estate is omitted and left exposed to attachment.

An assignment which is void or inoperative urder that statute will, if aɛɛeuted to by

the cieditore, Lecome operative and linding upon them.

Under the provision of the statute allowing the trustee to retain or deduct his

demards against the principal defendant from the effects in his hards, he may retain whatever, before the service of the trustee process, he becomes legally bound to pay to any third party on account of the principal deferdant.

The promise of an asrignce to keep the assigned property for the berefit and secu

rity of certain suieties of the assignor is an original undertaking, and not within the statute of frauds.

TRUSTEE PROCESS. The following facts are stated in the disclosure of tlie trustee, or appear from the papers attached to it.

On the 8th day of December, 1851, the principal defendant executed and delivered to the trustee an assignment of all his goods, chattles, moneys, debts, accounts and demands, and all the real estate he owned, or was interested in, in the town of Burlington, in trust for the benefit of certain enumerated creditors, who were divided into four classes, and a distinction by way of preferences made between the different classes. On the 9th of the same December, he executed and delivered to the trustee another assignment of the same property, and in all respects like the first, except that

Merrill et als. v. Englesby, Tr.

it contained a provision, after the payment of the creditors enumerated and divided into said four classes, for the payment of all of the assignor's other creditors. On the 10th of the same December, he executed and delivered, for the same purposes with those expressed in his assignment of the 9th, an assignment, to the trustee, of certain debts due, notes and demands, and articles of personal property specified in schedules annexed to the assignment. And on the 13th of the same month he executed and delivered to the trustee a conveyance of all of his real estate in the town of Bur. lington upon the same trusts and for the same purposes expressed in the last two preceeding assignments. These assignments were marked and referred to in the order of their dates as assignments A, B, C and D. The trustee took possession of most of the property upon the execution of the first assignment, and there was no formal surrender of that, or of the second assignment, upon receiving either of the subsequent ones. There was a horse, sleigh, and two wagons and sundry accounts, most of which were for less than ten dollars, which were not included in the third assignment, but the trustee received a general bill of scale of the horse, sleigh and wagons, dated December 13th, 1851, under which he took possession and disposed of them, and their proceeds went into, and were distributed with the proceeds of the property sold under the assignment. Previous to the service of the trustee process, the trustee bad paid some of the creditors specified in the first three classes, and had notified those specified in the fourth class that he was prepared to pay them nine per cent upon their claims against Hawley, and some of them had accepted of that dividend. The third class of creditors under the assignments were sundry persons who were to be indemnified and saved harmless from all liabilities they had incurred as sureties and endorsers for the assignor, among whom were Asabel Peck and the other persons who appeared as claimants in this suit; and the trustee disclosed that he was notified by the said Peck, in January, 1852, not to surrender to Hawley the property received under the assignments.

At the March Term, 1855, Asahel Peck, Horace Wheeler, James Morse, Seth Morse and Myron Morse appeared as claimants and filed allegations, averring that, at the time of the making of said assignments, they were respectively liable as sureties for the principal defendant to a large amount,—that the assignment was

Merrill et als. v. Englesby, Tr.

made to secure them for said liabilities, and that, before the service of the trustee process in this suit, they accepted of the assignment and adopted the assignee as their trustee, and thereby acquired a lien upon the property in his hands, and, relying upon the same, had paid most of the demands, whereon they were liable, &c. An objection was made to the said Peck being allowed to appear as claimant, for the reason, (as alledged,) that he had not such an interest in the matter as entitled him to so appear ; but the county court, May Term, 1854,-POLAND, J., presiding, -overruled the objection, to which the plaintiffs excepted.

The allegations of the claimants were then traversed, and upon the trial of the issue thus formed, at the November Term, 1855,PIERPOINT, J., presiding,—it appeared that the said Peck was, at the time the several assignments were made, surety for the defendant Hawley, to an amount sufficient to absorb the funds in the trustee's hands, and that he had since paid such liabilities as surety for the defendant; it also appeared that said Peck, before the first assignment, requested the defendant to furnish him security, which the defendant promised to do by leaving with his (Peck's) clerk, that day, good notes sufficient for that purpose, which promise was made the 8th day of December, 1851, as Peck was about leaving for Hydepark: and that upon his return the defendant informed him that he had put into the hands of Englesby property sufficient to secure him (Peck) and the defendant's other endorsers.

Peck immediately called on Englesby and requested him to hold on to the property for his (Peck's) security, and Englesby agreed so to do; but said Peck did not, at the time, nor did Englesby suppose that Peck would be entitled to any more than his proportion with the other sureties of the defendant; and after that Englesby applied to Peck and received from him advice and direction in reference to the management and disposition of the property.

Thereupon the court adjudged that the trustee was not liable, and that he recover his costs; to which decision the plaintiffs also ex cepted.

G. F. Edmunds and Roberts & Chittenden for the plaintiffs.

The first assignment, under which the property passed into the hands of the trustee, was void not only as a general assignment but as containing a resulting trust; and all the subsequent assignments

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