Слике страница

which might be for very dissimilar amounts, the con- may hold in said company at the time the debt actribution would become a matter more iuvolved than crued;' thereby clearly qualifying the enlarged meanthe original claim; as the theory on which the judge | ing of the word 'demand,' and showing satisfactorily ment is made conclusive is, that as the parties to it that it was used by the Legislature to denote a dehave had their day in court and have exhausted their mand arising upon contract. Damage arising upon proofs, they are thereby estopped from denying its val- tort is not a debt accrued within any reasonable con idity."

struction of that term. It is apparent as well from a But if this proves any thing it proves too much, and view of the whole section as from an analysis of its instead of showing the thing to be proved, that the parts, that the intent of the framers of it was only to judgment is conclusive evidence of a debt, it estab- make the stockholders individually responsible for the lishes on the contrary, that a liability on the part of debts of the company." the corporation for a tort, though afterward reduced This reasoning and conclusion, as applied to the presto judgment against it, is not a debt of the corpora- ent case, is not weakened, but rather strengthened by tion, even when in judgment, within the meaning of the language cited and relied on by counsel in support the statute imposing upon the trustees the penalty of his proposition, from the opinion of Mr. Justice sought to be enforced in this action for not making Story in Carver v. Braintree Manfg. Co., ? Story, 448, and publishing an annual report showing, among other construing a Massachusetts statute, enacting that things the amount of its existing debts. For keeping every person who shall become a member of any in view the statement now urged by counsel of the im- manufacturing corporation shall be liable in his inpossibility in advance of liquidation by the verdict of dividual capacity for all debts contracted during the a jury of even approximately, much less accurately, time of his continuing amember of such corporation." stating the amount of such liability, car it be sup- He there admits that debts, in the striot sense of the posed that the duty to do so is devolved upon theltrus- term, include only contracts of the party for the paytees, within either the letter or spirit of this statute, ment of money and nothing else; but feeling required under penalty of becoming personally liable to pay to construe the statute broadly, as a remedial statute, whatever judgment may be thereafter rendered on ac- he gave to the word "debts" a meaning, not unusual, count thereof against the corporation? Surely not. as equivalent to “dues; and to the word “conSuch claims are not within the contemplation of the tracted," a meaning which though more remote, he act. The mischief to be prevented by its requirements said, was still legitimate, as equivalent to “incurred;" has no relation to liabilities of that description. The so that the phrase, “debts contracted," in that sense, creditors to be protected are those only who become would be equivalent to “dues owing" "or liabilities such by voluntary transactions, in reference to which incurred;" and would therefore cover unliquidated for their benefit the information becomes important as claims arising from torts. But as we have already to the debts of the company.

seen, the statute involved in this discussion is not a The precise point does not appear to have arisen remedial statute, to be broadly and liberally construed, under this act, so as to have become the subject of a but is a penal statute, with provisions of a highly rigdecision by the New York Court of Appeals. But it orous nature, to be construed most favorably for those seems to be virtually decided in Heacock v. Sherman, sought to be charged under it, and with strictness 14 Wend. 69. That was an action on the case for the against their alleged liability. Under such a rule of recovery of damages against the stockholders of a cor

construction its language is limited by its own terms, poration, occasioned by not keeping in repair a bridge, to a liability on the part of the trustee to debts of the the liability arising, as it was alleged, upon the eighth corporation existing and arising ex contractu. section of the act incorporating the Buffalo Hydrau- It is finally iusisted that a judgment against the lic Association (St. N. Y. 1827, p. 45), which was as fol- corporation, although founded upon a tort, becomes lows:

ipso facto a debt by contract, being a contract of “That the stockholders of the said corporation shall record, or a specialty in the nature of a coutract. But be holden jointly and severally to the nominal amount we have already seen that the settled course of deof their stock for the payment of all debts contracted cision in the New York Court of Appeals rejects the by the said corporation or by their agents; and any judgment against the corporation as either evidence person or persons having any demand against the said or ground of liability against the trustees, and founds corporation may sue any stockholder or stockholders the latter upon the obligation of the corporation on in any court having cognizance thereof, and recover which the judgment itself rests. And it was decided the same, with costs, provided that no stockholder by this court in the case of Louisiana v. New Orleans, shall be obliged to pay more in the whole than the 109 U. S. 285, that a liability for a tort, created by amount of the stock he may hold in the said company statute, although reduced to udgment by a recovery at the time the debt accrued.” Mr. Justice Nelson, for the damages suffered, did not thereby become a delivering the opinion of the court, said: “The term debt by contract in the sense of the Constitution of

demand’ is undoubtedly broad enough, if it stood the United States forbidding State legislation impairalone, to embrace the claim of the plaintiff.

ing its obligation, for the reason that “the term conWe must however look at the whole section, and the tract' is used in the Constitution in its ordinary sense connection in which it stands, in order to fix its mean- as signifying the agreement of two or more minds, for ing in this case. The stockholders in the first place considerations proceeding from one to the other, to are made jointly and severally holden for the pay- do or not to do certain acts. Mutual assent to its ment of all debts contracted by the corporation or by terms is of its very essence." The same definition aptheir agents. The liability is here declared; it is new plies in the present instance, and excludes the liability and unknown to the common law, and is in terms of the defendants, as trustees of the corporation, for limited to demands ex contractu. The residue of the its torts, although reduced to judgment. section was not intended to extend the liability thus Wo find no error in the judgment of the Circuit declared, but is in furtherance of the remedy. *** But Court, and it is accordingly affirmed. the proviso to the section is conclusive upon the point. Any person having a demand against the corporation is authorized to sue any stockholder in any court, etc.,

NEW YORK COURT OF APPEALS ABSTRACT. provided that no stockholder shall be obliged to pay

ATTORNEY AND CLIENT-WHEN RELATION DOES NOT more in the whole than the amount of the stock he EXIST-UNDUE INFLUENCE.-This action was brought



to recover damages on account of fraud arising out of JUDGMENT - SATISFACTION OF FOLLOWING PRO-
various transactions in the exchanging or sale of farms CEEDS OF PROPERTY SOLD.-Pending au action to set
between the defendaut and Alfred aud Andrew Stout, aside a sale made ou credit by agents to a corporation
the latter being now dead. Alfred and Andrew were of which they were the maưaging officers, the agents,
colored people, and owned a farm in the town of Hec as such officers, sold the property to a third party,and
tor, Schuyler county, together with personal property, subsequeutly plaintiff obtained judgment setting aside
and it is claimed that the defendant defrauded them the sale and directing the delivery of the property to
out of this farm and property. The principal acts con. it. Held, that after perfecting judgment therein, an
stituting the transactions between the parties con-assiguor of the plaintiff was entitled to bring an action
sisted of the sale of his farm in Hector to the defend- to recover the proceeds of the sale received by said
ant, by his obtaining from the Stouts a deed of the agents from the corporation. The judgment entitled
same; the sale to them by written contract of defeud- the plaintiffs' assignors as owners to the immediate pos-
aut's farm; the surrender of this contract afterward, session of the property then in question and required
and the sale back to them in 1872 of the Hector farm its delivery to them. But the defendants how here
by a written contract with defendant; the surrender had, by converting the property, put it out of their
of this contract; the alleged fraudulent settlement in power to comply with the judgment, and that fact is
the spring of 1873, aud the sale of the Stout farm at that in substance the defense set up. It should not pre-
time by defendant to a third person. The complaint vail. It would require us to hold that an ineffectual
alleges that all the dealings and transactions between | judgment divested a successful plaintiff of his prop-
the defendant and the Stouts, above referred to, were erty, and gave the wrong-doers a new advantage. This
fraudulent and dishonest; that they were all part of a is not the law. On the contrary, the title is not dis-
scheme on his part to cheat and defraud Alfred and turbed until in some way he receives satisfaction for
Andrew out of their property, and were all done by it. Osterhout v. Roberts, 8 Cow. 43; Ball v. Liney, 48
defendant for that purpose; that by this means he did N. Y. 6. Although they have disposed of the prop-
cheat and defraud them out of all their property; that erty the defendants still hold the proceeds of the sale,
Alfred and Andrew signed papers for defendant with- and the judgment appealed from required them to pay
out reading them, and that they sigued some paper re- it over to the person appointed by its owner to receive
lating to the personal property on said farm, which pa- it. Avila v. Lockwood. Opinion by Danforth, J.
per was fraudulently obtained by defendant, and may [Decided Jan. 20, 1885.)
have signed other papers to defendaut, which, if so,
were also procured for fraud; that the defendant WILLDEVISE VOID AS TRUST; VALID AS A POWER
could get them to sign any paper he wished to. The -POWER OF SALE-DISCRETION-1 R. S. 729, $ 55 — RE-
complaint contained allegations of other fraudulent CEIVER CANNOT EXECUTE.-The will of P. by its terms
acts, and claimed damages by reason of the fraud and gave all the estate to his executors, with power to re-
deceit practiced. The evidence taken together does ceive the rents and profits, and to sell and convey the
not establish that the relationsbip of attorney and same, in their discretion, apoi trust, to divide the
client existed between the parties. The fact that the same or its proceeds, after payment of debts, among
defendant was an attorney, and that he was willing to the testator's four children. The executors were by
do all the writing without compensation, is not enough judgment in this action brought by one of the benefi-
to show the existence of such a relationship. The pa- | ciaries removed, and a receiver appointed, with the
pers which were drawn were in proper forin, and uo powers of an administrator with the will annexed.
legal advice was required in regard to the same. No On motion to compel the receiver to sell the real es-
advice was offered or obtained, and the defendant tate, held, that the trust attempted to be created was
never received a retainer or agreed to act as attorney unauthorized, and so no trust estate was vested in the
for the Stouts. It nowhere appears that he assumed executors, but the title passed to the beneficiaries
the obligations of a professional man in these transac- named as devişees in fee; that the devise, although
tions, or that the Stouts regarded him as acting in that void as a trust, was valid as a power, but that the re-
capacity. He was merely engaged as an individual in ceiver had no authority to execute the power. The
making a bargain for the sale or exchange of real es- statute authorizes a trust to sell lands for the bevefit
tate, and evidently drew up the papers gratuitously of creditors, and also to sell, mortgage or lease lands
without assuming to act as attorney for the Stouts. for the benefit of legatees. 1R. S. 729, S 55. But we
The defendant as an individual bad a perfect right to are of opinion that it is essential to the constitution
make a bargain with the Stouts as he did, and draw of a valid trust for either of these purposes that the
up the papers without charge, and he did not thereby power conferred upon the trustee to sell, mortgage or
pecessarily place himself in the position of the attor- lease the trust estate must be absolute and imperative,
ney or adviser of those with whom the bargain was without discretion, except as to the time and mamier
entered into. If he in these transactions gained any of performing the duty imposed, and that it is not
advantage it did not arise from the relationship of at- sufficient to invest him with a merely discretionary
torney and client, but from the fact that he was deal- | power of sale, which he may not exercise at his option
ing with persons of less capacity than himself to make and which does not operate as a conversion. The sale
a bargain or transact business. He may have been or other disposition mentioned in the statute must be
chargeable with deceit and fraud, and therefore liable the direct and express purpose of the trust. Any
if they were proved against him, but under the cir- other construction would open the door to an evasion
cumstances there seems to be no valid ground for the of the manifest intention of the Legislature to pre-
contention that he was liable for a vialation of his vent the separation of the legal title and beneficial in-
duty in a professional capacity. As the case stood there terest in lands through the medium of a trust, except
was not sufficient evidence to establish the fact that in the specific cases and for the precise purposes enu-
the relationship of attorney and client existed between merated in the statute. In the will in question not
the defendant and the Stouts, and that question was only is the power of sale conferred upon the executors
improperly submitted to the consideration of the jury. | discretionary, but it is apparent that it was incidental
In view of the evidence a case involving the principle of to the testator's main purpose in constituting the
undue influence does not arise, nor was it proper to trust, viz., to provide for a division of his estate by his
present any such question to the consideration of the executors. Nor can the trust be sustained as a trusi to
jury. Stout v. Smith. Opinion by Miller, J.

receive the rents and profits of land under the third [Decided Jan. 30, 1885.)

subdivision of section 55. There is no direction to






apply them to the use of any person or for any period. whole foundation of a trust of this nature is the payWhen received they are distributable, not as rents ment of the money by the cestui que trust, the real, not and profits, but because incorporated into the mass of the nominal purchaser, and so its conversion into land. the estate, to be divided by the executors. See Heer- The respondent cites Wood v. Robinson, 22 N. Y. 564; mans v. Burt, 78 N. Y. 259. The only remaining ques. | McCartney v. Bostwick, 32 id. 53, supra; Baker y. tion relates to the authority of the receiver to execute Bliss, 39 id. 70; Ocean Nat. Bank v. Olcott, 46 id. 12. In the power of sale vested in the executors. The power each of these the entire consideratiou for the property of sale was


in trust, which although sought to be reached was paid by the debtor at or bediscretionary, could on the death or removal of the fore the conveyance, and so they came directly within executors be executed under the discretion of the the statute (supra), and entitled the creditor to the court by a trustee appointed for that purpose. 1 R. S. benefit of the trust declared in his favor. On the 731, $$ 71, 102; Leggett v. Hunter, 19 N. Y. 445, and other hand, the doctrine that the trust, in order to ex. cases cited; Rooma v. Philips, 27 id. 357. But we are ist, must have been coeval with the deeds, and that of opinion that by the true construction of the judg- after one person has made a purchase with his owu ment appointing the receiver, he was invested with no money or credit, 10 subsequent transaction, whether greater power than that of administrator with the will of payment or reimbursement, can produce such a annexed. The point must now be deemed to be set- trust in his favor, is well settled. Says Chancellor tled that a discretionary power of sale vested in exec- Kent in Botsford v. Burr, supra: “There never was utors cannot be executed by an administrator with the an instance of such a trust so created, and there never will annexed. He succeeds to the power of sale given ought to be, for it would destroy all the certainty and to the executor, only when the direction to sell is im- security of conveyances of real estate.

The perative. Mott v. Ackerman, 92 N. Y. 540, and cases trust results from the original transaction at the time cited. Cooke v. Platt. Opinion by Andrews, J. it takes place, and at no other time; and it is founded [Decided Jan. 20, 1885. )

on the actual payment of money, and on no other CREDITOR'S ACTION

ground.” And in Rogers v. Murray, supra, it is said WHAT PROPERTY MAY

to be "impossible to raise a resulting trust so as to diREACHED BY-TITLE IN THIRD PERSON-CONSIDERATION PAID BY DEBTOR-RESULTING TRUST.-A judg

vest the legal estate of the grantee by the subsequent meut creditor's action, whether instituted under the application of the funds of a third person to the improvisions of the Revised Statutes (2 R. S. 173, SS 38 et provement of the property, or to satisfy the uupaid seq.) or the Code of Civil Proceedure ($S 1871 et seq.) purchase-money." Niver v. Crane. Opinion by Dancan reach only property belongiug to, or things in ac

forth, J. tion due to, the judgment debtor, or held in trust for [Decided Jan. 20, 1885.) him. Here the sole fact on which the plaintiff relies is EVIDENCE-DECLARATION OF GRANTOR AS AGAINST the alleged payment of consideration by his debt or GRANTEE- ILLEGAL EVIDENCE NOT HARMLESS--DEED for property conveyed at his instance to the other de- -RESERVATION CANNOT BE PROVED BY PAROL.-(1) fendant. But as between the two that circumstance | Evidence of declarations made by a former owner beis immaterial. The property is as against him her fore he acquired title to the property as to what he inown absolute property, whether he paid for it, or tended or wanted to do when he should acquire it, and whether, as she asserts, the judgment was made from his motive in acquiring it, were, we think, inadmissiher own estate. The debtor never had the title, nor ble as against his grantee. It is only when the party was it at any time subject to the plaintiff's judgment making the declarations has at the time of making or execution. Nor would it be if the deeds under them the title to the property, that such declarations which she holds should be cancelled. The debtor had bind his successor in interest. We are not referred neither title nor any legal or equitable interest to to any authority holding that declarations made bewhich either could attach. This follows from the fore or after that time have that effect. An actual statute, which declares (1 R. S. 728, $ 51) that where a

agreement between him and the party from whom he grant for a valuable consideration shall be made to one afterward obtained title might be effectual, but no person, and the consideration therefor shall be paid such agreement was shown. A declaration to a stran. by another, "n10 use or trust shall result in favor of

ger is mere hearsay. (2) The defendant was allowed the person by whom such payment shall be made, but to prove under objections that Phineas Hutchins was the title shall vest in the person named as the alienee supposed to be worth $15,000, while he testified that in such conveyance." As his case is presented by the he himself was not a man of property. The evidence pleadings, the plaintiff therefore must fail. Gar- as to the wealth of Phineas was clearly irrelevant and field v. Hatmaker, 15 N. Y. 475; McCartney v. Bost-improper, and cannot be said to have been harmless. wick, 32 id. 53; Everett v. Everett, 48 id. 218. The “Illegal evidence that would have a tendency to exstatute last cited however contains an exception, and cite the passions, arouse the prejudices, awaken the provides (8 52) that such conveyance shall be deemed sympathies, or warp or influence the judgment of the fraudulent as against the creditors at the time of the jurors in any degree, cannot be considered harmless." person paying the consideration, and declares that

(Anderson v. R. Co., 54 N. Y. 354), and as remarked " where a fraudulent inteit is not disproved a trust by Learned, J., in his dissenting opinion at Geueral shall result in favor of such creditors, to the extent

Term in the present case, “notbing could be better that may be necessary to satisfy their just demands," fitted to divert the minds of the jury from the true and the respondent seeks to maintain the judgment in issue than a pathetic contrast between the widow of a the case before us as one coming within this statute.

rich brother and the poor defendant." (3) A reservaIt should, we think, be a sufficient auswer that it was tion by parol of a life estate of the grantor, in case of not put upon that ground by the complaint, nor at the a deed in fee, cannot be sustained on any principle. trial. But waiving that, we are not able to see how

The proposition was not that the deed was to secure & the claim can be supported. The doctrine to be ap- debt whicb the defendant should have all his life to plied is well settled. To make out such a trust the

pay, but that independently of the question of mortmoney must be paid at or before the execution of the gage the promise of a life estate was valid. This is atconveyance, and not after. Jackson v. Moore, 6 Cow.

tempted to be sustained by coupling it with the suppo506; Botsford v.Burr, 2 Johns. Ch. 405; Steere v. Steere, sition that in consideration of and relying upon such bid. 1; Jackson v. Morse, 16 Johns. 197; Rogers v. Mur- promise, the defendant kept possession and made valray, 3 Paige, 390, 391; Russell v. Allen, 10 id. 249. The

uable improvements upon the land, and the case of

[ocr errors][ocr errors]

Freeman v. Freeman, 43 N. Y. 34, is cited as support- initio only for the sale of so much of the goods as were
ing the charge. Assuming, without deciding, that sold in excess, and not for those sold in pursuance of
that case is applicable, there is no evidence here that authority." The same doctrine is stated in 1 Smith
any such improvements were made, and it was errone- Lead. Cas. *219, as follows: “But if there be a seizure
ous to submit that question to the jury. The defend- of several chattels, some of which are subsequently
aut testified that after his purchase he made improve abused, and the rest not, the seizure is, or becomes, il-
ments to the amount of about $100, but these were legal only as to the part which it was unlawful to seize
made before the conveyance to Phineas. After that or which was subsequently abused, and the seizure of
time, as he testified on his first examination, he made the rest continues legal.” Wentworth V. Sawyer.
no improvements, but kept the fences up. Being re- Opinion by Foster, J.
called, he testified that after the conveyance to Phin-

WILI, DEVISE-LIFE-ESTATE.- A testator devised eas he put up a board fence and set out six pear trees

real estate to his widow to hold “during her life for and some raspberry bushes, and cleaned up a piece of

her maintenance, but not to sell the same, the said the land and kept the buildings good, but to use his

real estate to go to John Mehan at her death, if any reown expression, he had not done " a terrible sight of it." These are not such permanent improvements as

main." Held (1), that the widow took a life estate by

express words of limitation, without any power of diswould bring the case within Freeman v. Freeman if it

posal annexed. Leighton v. Leighton, 58 Me. 69, 70; were applicable. Hutchins v. Hutchins. Opinion by

Warren v. Webb, 68 id. 135, 136; Paine v. Barnes, 100 Rapallo, J.

Mass. 471; Taggart v. Murray, 53 N. Y. 236. (2) That [Decided Jan. 20, 1885.]

the words “if any remains" are by implication in opposition to the language of the testator, in the same

clause by which the widow is expressly prohibited MAINE SUPREME JUDICIAL COURT AB

from making sale of the real estate, apparently inoonSTRACT.*

sistent with every other expression in the will, and

therefore cannot be held to imply a right of disposal. TRESPASS-AB INITIO-FAILURE TO LEAVE ENOUGH It will be noticed that in many of the cases where such HAY TO KEEP STOCK.-When an officer in the attach- words as “if any remains," “ if any shall remain unment and removal of hay does not leave the requisite expended,” and other similar expressions, are held to amount to keep the stock which the defendant owns, imply the right of disposal, the testator had, either exexempt from attachment, at the time of the attach- pressly or impliedly, authorized the disposal of his ment, he thereby becomes a trespasser as to so much estate by the use of other language, and with wbich as is taken beyond what is authorized by law, but these expressions were only in harmony in conveying not ab initio as to all the hay taken. The authorities the intent of the testator. Ramsdell v. Ramsdell, 21 upon this point, both English and American, are that Me. 288; Harris v. Knapp, 21. Pick. 416; Leighton v. it is only for the excess that the officer would be liable. Leighton, 58 Me. 69; Scott v. Perkins, 28 id. 35; BurThe distinction running through the more modern leigh v. Clough, 52 N. H. 267. And our court, in recases-not at variance with those of earlier date—is ferring to the case of Harris v. Knapp, supra, says: marked, that there may be an abuse of authority by "The court gave great force and effect to the phrase, an officer which will affect his acts, and render him • whatever shall remain at her death,' deducing from liable as a trespasser, only in relation to a portion of it the conclusive implication that the devisee had the the property, especially when the same is capable of right to dispose of the property. The use of the word division, and where, in reference to that property, the "disposal' in the will however undoubtedly contribuacts done in excess may be distinguished from those ted to the conclusion arrived at by the court." Wardone in pursuance of authority. Wheeler v. Ray- ren v. Webb, supra. From a careful examination of mond, 130 Mass. 247; Cone v. Forest, 126 id. 101. the provisions of this will we are satisfied that it was Where the act done is wrongful, but is so merely as to

the intention of the testator that his widow should a part of the goods, no wrong being done as to the take a life estate, with no power of conveying the fee; residue, the wrong-doer is a trespasser as to that part that the words “if any remains,'' taken in the comecof the goods only in respect of which the wrongful act tiou in which they are found, must yield to the more was done. As in the case of Dodd v. Monger, 6 Mod. positive aud unequivocal declaration of tbe testator,. ern, 215, where several barrels of beer were distrained “but not to sell the same," and which is in harmony for rent, and the distrainer drew beer out of one of with the other provisions of the will, Birmingham v. them, Lord Holt held that it rendered him a trespasser | Leson. Opinion by Foster, J. ab initio only as to that single barrel. In Harvey v. Pocock, 11 M. & W. 744, it was decided that where a


-A landlord distrained for rent, with other things, goods judge of probate appointed an administrator with the not distrainable, the distrainer was

will annexed upon the estate of a testatrix, whose de

a trespasser
only as
to the goods which were not distraina-

ceased husband was the judge's uncle. Held, that the ble. Lord Abinger, C. B., alluding to Dod

judge was legally competent to make the appointment, V. Monger, 6 Mod. 215, and to the early case of Six

the relationship between him and the testatrix not Carpenters, 8 Coke, 146, says: “The case in 6 Modern

rendering the appointment void. At the older comis undoubtedly a very strong authority for the defend

mon law personal interest formed the only ground for ants. The Six Carpenters' case leaves it an open ques

challenging a judge. Bou. Law Dio. Incompetion how far the party becomes a trespasser ab initio


It was not objectionable for a judge to sit in as to the whole distress by an excess as to part. It is

a cause to which a relative was & party. The public very reasonable that he should not, but that his liabil

sense has become finer in that respect than formerly. ity should be limited according to the doctrine laid

According to Chancellor Walworth's statement, Chan. down by Lord Holt.” The same views are held by the

cellor Kent sat in a cause where his brother-in-law was present chief justice of this court in Seeking v Good

personally ivterested, and in another case where his ale, 61 Me. 404, wherein he says: “We think a fair con

own brother was the complainant. In re Leefe, 2 struction of the rule established in the Six Carperters'

Barb. Ch. 39. He presided probably because there was case makes the defendaatliable as a trespasser ab

no other court that had jurisdiction of the cases. The

historical phase of judicial disqualification is learnedly * Appearing in 76 Maine Reports,

presented by Folger, J., in the case of In re David R. Ryers, 72 N. Y. 1; S. C., 28 Am. Rep. 88. The true authorized to act, and does act for both, although he test is whether the relative has an interest as a party sigus the assigument by his own individual name, and to the cause or proceeding before the judge; or stands the assignment does not itself disclose that he is acting in the condition of a party. In Aldrich, appellant, for or upon the authority of the other permittee. The infra, it is said: “There is not the same reason that authority of the one to act for both may be shown by the remote or contingent interest of a relative or con- oral evidence. The law in many cases admits evidence nection should exclude the judge from acting. It is to show the real and actual capacity in which persons only when the relative is a party or has a direct or ap- have set their names to written contracts. Had the parent interest in the matter to be passed upon by the words “for self and Colbath” been added to Foss' judge, that the condition arises that works a disqual- name the assigument would have been complete. They ification,” As said by Rapallo, J., in the case of In may be supplied by oral proof. Higgins v. Senior, 8 re Dodge & Stev. Manuf. Co., 77 N. Y. 101; S. C., 33 M. & W. 834; Huntington v. Kyox, 7 Cush. 371. It is Am. Rep. 579: "Judgments and proceedings of courts competent to show that contracting parties were against corporations would stand upon a very preca- agents of other persons, so as to give the benefit of the rious foundation in these days if they could be over- contract to or charge its liabilities upon the unnamed turned on discovery that some judge who took part in principal. An undisclosed principal may be shown to them was related by blood or marriage to some stock- be the real party in a trausaction in which the agent is holder of the corporation.” It would be difficult for the only ostensible person. 1 Whart. Con., $ 202, and a judge to kuow when he could safely sit in cases numerous cases in note. Lerned v, Johus, 9 Allen, where large corporations are parties. Even where the 419; Lamson v.Russell, 112 Mass. 387; Cushing v. Rice, judge is disqualified to act from his own personal in- 46 Me. 303; Coleman v. Bank, 53 N. Y. 393; Hutton v. terest, it must be something more than a merely possi- | Bulloch, L. R., 9 Q. B. 572. We think the present case ble aud theoretical interest. It must be an actual in- falls within the circle of the doctrine marked out by terest, however small, direct or indirect. He can do the authorities. (2) An assigument in a mortgage merely formal acts when a relative is interested as a form of a permit to cut and remove timber need not party. Cooley Con. Lim., § 413. The pecuniary in- be recorded as a chattel mortgage, so far as cuttings terest of the judge's relatives was not whether A. or B. are concerned which are made after the assignment; be appointed, but merely what a suitable person should aliter, as to cuttings made before the assigument. (3) be. Chancellor Walworth decided that it was not in- | The same rule applies where the permit extends to competent for a vice-chancellor to appoint his son upon hemlock trees that have been already cut down and a committee of lupacy, it being merely a ministerial | left, with the bark peeled therefrom promiscuously service to be performed under the direction of the upon the land. (4) The statutory requirement that court. In re Hopper, 5 Paige Ch. 489. See Nettleton chatte) mortgages shall be recorded applies to equitav. Nettleton, 17 Conn. 542; Hall v. Thayer, 105 Mass. ble as well as to legal mortgages. Such was no doubt 219; Matter of Aldrich, 110 id. 189, distinguished. the idea of the court in Shaw v. Wilshire, 65 Me. 485. Russell v. Belcher. Opinion by Peters, C. J. [See 33 Barrows, J.,

there says:

We see no reason to disAm. Rep. 346; 29 Eng. Rep. 330; 91 N. Y. 284.-ED.] criminate between an equitable mortgage and one in JUDGMENT-NONSUIT NO BAR TO SECOND SUIT.-A

which the condition is more fully expressed." If judgment of nonsuit is not a bar to a subsequent ac

equitable mortgages are not to have the privilege of a tion for the same cause. This view is in full accord

registration, we do not see how such mortgages can with the cases adjudged by courts that proceed accord

be very available or even valid, unless a delivery is ing to the course of the common law. Morgan v. Bliss,

taken and kept. It may be said that a mortgage in 2 Mass. 111. In Kvox v. Waldoborough,5 Greenl.185, it

the form of absolute sale gives no indication of the na

ture of the condition anuexed. But many legal mortappeared that the parties in a former suit for the same cause of action sigued an agreed statement of

gages do not upon their face fully disclose the facts. facts, and stipulated that if the facts did not warrant

The very fact however that an instrument in the form the action the plaintiff should become nonsuit, and the

of absolute sale is recorded, is a notice that some concourt held that a judgment of nonsuit entered accord

ditiou is annexed. What the conditiou is may be asing to the stipulation was no bar to the action. Iu

certained under the statutory modes provided for the that case the judgment of nonsuit was held to be no

purpose. A sale and a separate written defeasance given bar, because the facts touching the rights of the parties

back constitute even a legal mortgage. But in such had not been adjudged by any tribunal. The court in

case the vendee has no means of requiring the separate

defeasauce to be recorded. We make no distinction the original suit simply determined the law applicable to the facts agreed. So in the action wherein a judg

of the kind, set up by the plaintiff, in the matter of ment of nonsuit was rendered is claimed to bar this

the registration of deeds of real estate when regarded suit, the uudisputed facts were held insufficient in

as equitable mortgages. Putnam v. White. Opinion law to support the action, but were not adjudged, that

by Peters, C. J is, decided in the defendant’s favor. So too a norsuit upon an agreed statement of facts was held to be no

ILLINOIS SUPREME COURT ABSTRACT.* bar to a subsequent suit. Homer v. Brown, 16 How. 354. It has been said that a “uonsuit is but like blowing out a candle, which a man at his own pleasure

TENDER-MUST BE KEPT GOOD.-(1) A tender of the lights again." March Arbitraments, 215; Clapp v.

amount due from the purchaser of land to his vendor, Thomas, 5 Allen, 158; Bridge v. Sumner, 1 Pick. 371;

who is not in a position to make a clear title, accordManhattan Life Ins. Co. v. Broughton, 109 U. S. 121;

ing to his bond, by reason of an incumbrance placed Audubon, Ex. v. Excelsior Ins. Co., 27 N. Y. 216;

by him on the premises sold, to be availing to stop the Eaton v. George, 40 N. H. 258; Derby y. Jacques,

accruing of interest after such tender, must be kept 1 Clifford, 425; Jay v. Carthage, 48 Me. 353. Pender- good. To have that effect the tender must ke kept in grass v. York Manufacturing Co. Opinion by Has- money, at all times ready to be paid, and subject to

the order of the creditor at any time when he shall kell, J.

comply with his contract so as to be authorized to reLICENSE-TO REMOVE TIMBER-ASSIGNMENT--CHAT- ceive it. (2) The money' tendered must at all times be TEL MORTGAGE--FILING.-(1)A written permit to cut

kept in readiness for the creditor, and not be used by and remove timber from land running to two permittees may be wholly assigued by one of them, if he is

*To appear in 109 Illinois Reports.

« ПретходнаНастави »