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modern extradition was both recognized and acted it, exempt from the debts of the husbaud? The husupon.

band and wife, both, were insolvent. The husband This construction of the tenth article of the treaty is could not by law make the contract of loan to his consistent with its language and provisions, and is not wife; so the money advanced to the wife was still his only in harmony with the opinions and modern prac- money, and the case stands as if he himself had ditice of the most enlightened nations of Europe, and rectly put that much cash into the purchase of the just and proper in its application, but necessary to ren- land; and so, also, a court of equity will treat the der it absolutely certain that the treaty cannot be con- transaction, to the extent of his advances, as if the verted into an instrument by which to obtain the cus- deed had been made directly to the husband. tody and secure the punishment of political offenders. It is not material to inquire whether the crop grow

Hawes placed himself under the guardianship of the ing upon the homstead, at the time it was assigned, British laws, by becoming an inhabitant of Canada. was valued as a part of the homestead; that does not We took him from the protection of those laws under distinctly appear, and we assume that it was not, and a special agreement, and for certain named and desig- could not be, so estimated. Nor is it material to innated purposes. To continue him in custody after the quire whether a crop grown upon the homestead, accomplishment of those purposes, and with the object after it has assumed the character of personal property, of extending the criminal jurisdiction of our courts is exempt from the debts of the owner as to the excess beyond the terms of the special agreement, would be above the exemption allowed by law. It is certain a plain violation of the faith of the transaction, and a that the debtor is always entitled to the maximum of manifest disregard of the conditions of the extradi- his personal exemption, and that by so much of this tion.

exemption as may be contained in producing a crop, He is not entitled to personal immunity in conse

by that much, may he be reimbursed out of the crop quence of his flight. We may yet try him under each produced, so as to maintain the exemption to the and all of the indictments for embezzlement, and for

maximum standard fixed by law. In respect to the uttering forged paper, if he comes voluntarily within

homestead it has been held in other States, having the jurisdiction of our laws, or if we can reach him

similar laws, that if it should depreciate in value below through the extradition clause of the Federal Consti

$1,000 by the burning of the building upon it, a fall of tution, or through the comity of a foreign govern

prices, or other casualty, the owner would be entitled ment.

to a re-allotment out of any subsequently acquired But we had no right to add to, or enlarge the condi- land so as to bring the homestead up to the maximum. tions and lawful consequences of his extradition, nor

So, on the other hand, if the homestead should appreto extend our special and limited right to hold him in ciate in value, by a rise in prices, the erection of costly custody to answer the three charges of forgery, for buildings, or other improvements, the creditors would the purpose of trying him for offenses other than those be entitled to a re-assignment and re-allotment, so as to for which he was extradited.

reach the excess over the value fixed by law. It was We conclude that the court below correctly refused

so held in Illinois in the case of Haworth v. Travis et to try Hawes for any of the offenses for which he al., 67 Ill. 301, and in Stubblefield v. Graves et al., 50 id. stood indicted, except for the three charges of forgery 103, where the court put this case: “Suppose nine mentioned in the warrant of extradition, and that it years ago a tract of land containing ten acres, part of properly discharged him from custody.

a large tract near the city limits of Chicago, had been The order appealed from is approved and affirmed.

valued and set off as a homestead, it being then of the value of $1,000, and on the land the resident head of

the family had erected costly buildings and improveSTATUS OF THE PRODUCT OF EXEMPT

ments, by means of which, and the rise of property in PROPERTY.

that locality, its value should now greatly exceed

$1,000, by what principle of law or justice could the SUPREME COURT OF NORTH CAROLINA, JANUARY

claimant insist upon holding the land as a homestead TERM, 1878.

when one-tenth of the tract fully satisfy the homestead right?"

A debtor, being unable CITIZENS' NATIONAL BANK V. GREEN.

to pay his debts, has no right to a homestead of greater

value than $1,000. By securing one to him of that A homestead in land to the maximum value allowed by law had been allotted to G., who was insolvent. From the

value, his rights are satisfied and the requirements of proceeds of a crop grown on the land he loaned his the law fulfilled.” To the same effect is 37 Cal. 175. wife $300, with which she purchased other land, taking the deed in her own name Hell, that the money ad

These authorities are cited to show what has been vanced to the wife was still the husband's money and the construction of the courts upon similar homestead the land purchased therewith his, and that such land was not exempt from his debts.

provisions in other States, and not as an expression of The circumstance that property is the product of or in- the opinion of this court upon a grave question which crease from exempt property does not render it exempt.

is not fully presented by the facts of this case. action tried at Wake Supreme Court. The

The single proposition before us is, what is the status facts appear in the opinion.

of the additional tract of land purchased by the husBYNUM, J. A homestead in land, to the maximum

band, who already has a homestead of the maximum value allowed by law, had been duly allotted to the value allotted and set apart, by metes and bounds. defendant, L. M. Green. A crop of cotton was then The question must be determined by our own legislagrowing upon it, which, when matured and gathered, tion; for, if it is exempt from the debts of the owner, he sold, and of the proceeds undertook to lend $300 to it must be either by some constitutional or some statuhis wife, who, with that sum and $200 more, which she

tory provision. We look in vain for either. procured from her sister, purchased the land in ques- By art. 10, sec. 2, of the Constitution, it is provided : tion, with the privity of her husband, and had the “That every homestead and the dwelling and buildings deed executed to herself. Is this land, or any part of

used therewith, not exceeding in value one thousand

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dollars, * * shall be exempt from sale under exe- erty allotted to him. By the recent act of the Legislacution or other final process.” By ch. 44, Bat. Rev., ture (Laws of 1876-7, ch. 253), this determinable exempit is made the duty of the sheriff, having an execution tion has been extended into a fee simple, and the homein his hands, to levy upon all the property of the stead is now forever exempted from all liability for debtor, real and personal, except the homestead and the debts of the owner, contracted after the ratificapersonal exemption, as provided in the Coustitution tion of the act, if the act be constitutional. In the and statutes. And by ch. 55, Bat. Rev., it is provided, face of this, it is still insisted, that all after-acquired that whenever the real estate of any resident of the property derived from the income of the homestead, State shall be levied on by virtue of an execution or is exempt from the debts of the owner. Suppose A other final process obtained on any debt, the sheriff has had assigned to him his homestead and personal shall cause the homestead to be appraised and set apart, exemption, and by good management, he has acquired by metes and bounds, not exceeding in value one thou- other lands of the value of $5,000. It is asked, why sand dollars, and then to levy upon the excess. The should not these acquisitions belong to him, as the language of the law is so plain, that there is no room

natural fruit and product of the exempted property? for construction, and that is, that all the real estate of The answer is, they do, undoubtedly. No one disthe debtor, except that which is specifically set apart

putes that proposition; on the contrary, it is the very as the homestead, is the subject of seizure and sale proposition we affirm. All such property does belong under an execution or other final process. No pro- to him, absolutely; and with it he may buy and furnish vision of the ('onstitution, or of the statutes supple- fine houses, have his carriage and horses and supply mentary thereto, furnishes the ground of a doubt; on

his table with the costliest luxuries. But when he the contrary, their legal effect is simply to protect the refuses to pay his butcher, the latter might well exoccupant in the enjoyment of the land set apart as a claim, homestead, unmolested by his creditors. They make “Upon what meat doth this, our Cæsar, feed, no provision and contemplate none for the owner,

That he has grown so great ?" from the homestead, or any other source of income, to As in respect to land so as to the personal exemption. acquire additional lands and estates, which shall be Suppose B has had assigned to him, as a part thereof, protected from his debts, just as his homestead is stock, cattle, or brood mares, it is again asked do not secured. The courts cannot, by judicial legislation the increase belong to the owner of the dam ? Uneven, do so bold a thing as to confer new rights and ex- doubtedly. Partus sequitur ventrem, and he may inemptions, in the face of plain legislation by the law- crease the stock, by continued production and repromaking power.

duction, to an unlimited extent aud value, and it It is urged in argument that a homestead having been would still be all his, absolutely. But the question is, secured to the debtor by law, all income derived from what sanctity distinguishes and protects this new its user is merely an incident which follows their wealth, which is not equally vouchsafed to the same principal and belongs absolutely to him, and may be kind of property belonging to other men? used either in improving the property, or in other in- Again. Suppose “ A,” having accumulated out of vestments; and that, unless this be so, the law rather the homestead, other land of the value of $10,000, dies, discourages than invites improvenients and enter- leaving a child. Under the law of 1876–77 this land prise, by cutting off all inducement to industry, the would descend as homestead, and all the additions legitimate reward of which, when in excess of the made to it by the heir would also be homestead, and so exemption, would be seized and sold by the creditor. ad infinitum, exempt from the debts of all the propriSuch an argument should not be addressed to a court etors. which cannot make, but only construe and administer If the construction of the law should be, that all the law as it is written. If worthy of cousideration, it acquisitions of property are exempt from execution, it should be directed to the Legislature, as a reason for would be the interest of all men at once to take the changing the law.

benefit of the homestead, as well the rich as the poor, There is some misconception as to the nature of the for thereby all income derived from it could be capitalhomestead law. The homestead is not the creature of ized and recapitalized from that one nucleus to the any new estate, vesting in the owner new rights of building up of colossal fortunes, in defiance of debts, property. His dominion and power of disposition past or future. And what a door would be open to over it are precisely the same as before the assignment frauds and perjuries, as each owner of a homestead of homestead. The law is aimed at the creditor only, would be tempted to allege and establish that all his and it is upon him that all the restrictions are imposed, estate, no difference how acquired, was but the inand the extent of these restrictions is the measure of creasement of his own or the homestead of some the privilege secured to the debtor. And these restric- remote ancestor. It would be a fruitless endeavor in tions imposed on the creditor are, that in seeking satis- the creditor to investigate and sift out, and separate faction of his debt he shall leave to the debtor, un- the homestead from the non-homestead property thus touched, $500 of his personal, and $1,000 of his real es- confused and confounded. In the progress of time. tate. With his limitation upon the rights of the of course, such intricate and perplexing investigations creditor it is manifest that all the obligations of the must pass from the hands of creditors and attorneys to debtor to pay his debts, aud all his rights to acquire those of the antiquarian, until all credit perished. and dispose of property, are the same after as before Such a construction would come in direct conflict the assignment of homestead. The homestead has with the law, for by it only past debts are discharged, been called a determinable fee, but as we have seen while by the homestead law both past and future debts that no new estate has been conferred upon the owner, would be practically discharged. The baukrupt's and no limitation upon his old estate imposed, it is future acquisitions are liable for future debts, while obvious that it would be more correct to say that there those of the owner of the homestead would not be; is conferred upon him a determinable exemption from and one result of the anomaly would be to transfer the payment of his debts in respect to the particular prop- collection of all foreigu claims from State to Federal courts, where a law so plainly impairing the obliga- more precarious and insecure, and as a result have tions of contracts would not be recognized. Such, proportionately increased the premium which must however, is not the proper construction of the home- be paid for it, so that at few periods of our history, has stead law in this State or any other of our sister interest been higher, or borrowed money less remunStates. It is a mistake to suppose the exemption laws

erative than now, and at no former period has the are something new in North Carolina, or that their

debtor class been more under the dominion of the construction has not long been settled. The present

merchant, grocer, and capitalist. From the conditions law differs in no material respect from that enacted

of things, as society is organized, the poor, the needy, as early as 1773, except that it is more enlarged and ex

and the improvident, will borrow if they can, and will tends to lands as well as personal property. By that

not hesitate to sell or incumber their homestead upon law, amended and enlarged in its operations from time

ruinous terms, and the beneficent intentions of the to time, as finally embodied in Rev. Code, ch. 45, $s 7,

law, for their benefit, are thus defeated. Whether 8 and 9, certain property was exempted from sale

this result has proceeded from insufficient or misguided under execution, such as a limited quantity of pro

legislation, from the habits of the people, or from a visions, household articles, cow and calf, etc. It was

combination of all these causes, will admit of different never held, that we are aware, that the increase de

opinions, as men view the situation from a moral or rived from these exemptions, as, for example, a stock political standpoint. of cattle raised from the cow and calf, was exempt

In respect to the case before us, it remains for the from execution. And in order that the allotment

court to declare its opinion to be that by the unammight be perpetuated for the protection of both

biguous words of the Constitution and laws pursuant debtor and creditor, commissioners were appointed to thereto, the defendant, L. M. Green, is entitled to no lay off and assign to the debtor such property as he

other laud exempt from his debts, than the homestead was entitled to under the act, and a list thereof was

which has been appraised and set apart to him. And required to be made out and filed among the records

in the language of a great judge upon the construction of the County Court. Such proceedings are substan

of the statutes: “It is the duty of all courts to confine tially required under the present homestead lav yet

themselves to the words of the Legislature, nothing no one supposed that under the old law the debtor was

adding thereto, nothing diminishing." The conseentitled to any thing more than was thus set apart.

quences if evil can only be avoided by a change of the The rule of law then was, and we think now is, that

law itself, and not by judicial action. Sedgwick on all of a man's property was and is held subject to the

Stat. and Const. Law, 205 to 220. payment of his debts except in so far and to the extent

The exceptions to the evidence excluded, taken by only that it has been specifically exempted. The

the defendant, are untenable, and the rulings of the practical working of this law is not always without its

court below are sustained. There is no error. difficulties; as, for instance, where the value of the

Judgment affirmed. homestead and personal exemptions may have been

Rodman, J., dissented. increased by buildings, the rise of valuo, or successful crops, or have been diminished in value by opposite causes. Our case is not one of that kind, and demands

RECENT AMERICAN DECISIONS. of us no opinion of what would be the rule of adjustment and liability in such cases, and we give none. SUPREME COURT OF WISCONSIN,* APRIL, 1878. Cases of the kind will not be frequent where the excess over the maximum allowance will be so clear and pal

CONTRACT. pable as to provoke litigation on the part of the cred- Security giren upon compounding crime void : comitor; and where such cases do occur, they must be pounding offenses against revenue law.- The Federal adjusted by the good sense of the parties, or, like all statute which authorizes the commissioner of internal other irreconcilable differences, by the arbitrament of revenue, with consent of the secretary of the treasury, to the law. It is not from a construction of the law, at compromise any civil or criminal case under the interonce just to the creditor and debtor, that the latter val revenue laws, instead of commencing suit thereon, has cause of apprehension. His danger is in another and, with like consent, under the recommendation of direction, - the frail and evanescent tenure of the the attorney-general, to compromise any such case afhomestead itself. Though bestowed it is not pre- ter suit commenced thereon (R. S. of U. S., § 3229) served to him. The benevolent purpose of its creation being, in the judgment of this court, essentially imwas to save the improvident and their families from moral, so far as it authorizes a compounding of crimes, the consequences of their improvidence. It is mani- any collateral contract, looking toward, in aid of, or fest that this purpose fails, and that there is an incon- subordinate to, such an agreement to compound a gruity between the object and end, 80 long as the crime, under that statute, will not be enforced in the debtor is allowed, first to incumber and next to part courts of this State. Wright v. Rindskopf. with what was intended as a provision for himself and

CORPORATION. family. It cannot be disputed that real and chattel mortgages, liens and incumbrances of all kinds, to an 1. Act of, in excess of powers : ratification.- Where a unparalleled extent, now cover a large portion of the loan by a corporation can only be regularly authorized real and personal property of the State, and that they by a vote of the directors at an official meeting, a loan are generally confined to that class of our population inade without such vote may be ratified by the corwhich is theoretically supposed to be enjoying the ben- poration; an action by the corporation upon the seefit of the homestead laws. It is not so much the curities given for the loan is a ratification; and an excess over the legal exemptions that needs protection, averment in such action that the loan was made by for there is but little of it, but it is the homestead itself that needs protection. Exemption laws, without * From 0. M. Conover, Esq., State Reporter. To appear in 43 Wisdiminishing the need of credit, have naturally made it consin Reports.

plaintiff “through its proper officers" is sufficient. Germantown Farmers' Mut. Ins. Co. v. Dhein.

2. Securities for loan by corporation given in name of directors. - Where securities given for a loay made by a corporation run to persons named, as its directors, and their successors in office, the corporation may sue thereon, as owner and holder, without reformation of the instruments, and without formal assignment to it. (Supervisors v. Hall, 42 Wis.59.) Ib.

3. When contract in excess of powers valid.-While contracts of corporations which they have no authority to make may be void, contracts which are within the general scope of their powers, but which are in excess of those powers in some particulars, are valid, unless, by reason of such excess, they are against public policy. Rock River Bank v. Sherwood, 10 Wis. 230, approved and followed. Thus, the plaintiff corporation having exceeded its power in loaning money for luo years, instead of one, and taking a note and mortgage therefor instead of a bond and mortgage (P. & L. Laws of 1857, chap. 331, $3); and the contract not being immoral, and not against public policy, no penalty being attached to it, plaintiff may maintain an action upon the securities. Ib.

RECENT BANKRUPTCY DECISIONS.

ADJUDICATION. 1. Who may oppose: attachment creditor.- A creditor who, prior to the filing of the petition, has obtained a lien upon the property of the alleged bankrupt by process of mesne attachment, is entitled to intervene and oppose an adjudication. U. S. Dist. Ct., New York. In re Burton & Watson, 17 Nat. Banks. Reg. 212.

2. Non-resident of United States.— The court has no power, in involuntary proceedings, to adjudicate any person a bankrupt who was not a resident of the United States at the time of the filing of the petition, although such person may have carried on business within the district for the requisite period. Ib.

3. Involuntary proceedings were commenced against B. and W., who were doing business in New York, B. was a resident of Canada. Held, that ap adjudication could be granted against W. alone. Ib.

COMPOSITION. What creditors may not vote as to.-Creditors are not entitled to vote upon proposals for composition without having first proved their debts. U.S. Dist. Ct., N. D. Indiana. In re Mathers & Moffit, 17 Nat. Bankr. Reg. 225.

CRIMINAL LAW.

CREDITOR.

1. Jury trial of indictment cannot be waived.-Upon a plea of “not guilty" to an information or indictment for crime, whether felony or misdemeanor, the right of the accused to a trial by jury cannot be waived ; and a trial by the court alone will not support either a judgment or a report to this court (under the statute) of questions of law arising in the case. State v. Lockwood.

2. Patent notes: statute relating to, invalid.--Chapter 110, of 1872, requires every person taking a promissory note or other written obligation, any part of the consideration of which is a patent right, etc., eto., to cause to be inserted in the body thereof the words "given for a patent right," and punishes a violation of the act as a misdemeanor. It seems that this court would be disposed to hold, if the question were properly before it, that the act is void as an invasion of Federal authority. Ib.

Secured creditor, when not counted under $ 39.-So long as a creditor holds ample security on property of the debtor, and does not waive or release the same, he is not to be counted as a creditor having a provable debt within the meaniug of section 39 as amended. R. S., $ 5021. A secured creditor may, at any timne, release his security as to the whole or a part of the debt, and if he does so seasonably, before the hearing and decision as to the quorum of creditors and debts, he is entitled to be ranked as a creditor having a provable debt and admitted as such in determining whether the requisite number and amount have joined in the petition.. U. S. Dist. Ct., W. D. Michigan. In re Crossette & Graves, 17 Nat. Bankr. Reg. 208.

FIRE INSURANCE.

1. Wisconsin statutes relating to valuation: valuation stated in policy conclusive.--Chapter 347,0f 1874, provides that where real property, in this State, insured against fire, shall be totally destroyed by fire without criminal fault of the assured, the amount of insurance written in the policy “shall be taken and deemed to be the true value of the property at the time of such loss, and the amount of the loss sustained," and as the measure of damages. Held, that, in an action upon a policy issued since the statute took effect, in a case coming within its terms, the amount of insurance written in the policy is conclusive as to the amount of the damages (if any) for which the insurer is liable by reason of the loss. Reilly v. Franklin Ins. Co. of St. Louis.

2. Effect of statute not avoided by stipulation. As the statute rests upon grounds of public policy, the conclusive effect of the amount of insurance written in the policy upon the measure of damages is not altered by a stipulation in the same instrument that the damage should be established “according to the true and actual cash marketable value” of the property when the loss happened. Ib.

STATE INSOLVENT LAWS. Bankrupt law has not superseded: compulsory probeedings under.- The Bankrupt Act has not entirely superseded the State insolvent laws. Where an insolvent debtor refuses to file a voluntary petition, and has committed no act of bankruptcy, and it does not appear that the requisite number of creditors are ready to join in a petition against him, compulsory proceedings by a creditor under a State insolvent law are not prohibited by the Bankrupt Act. Court of Errors, Connecticut. Geery's Appeal, 17 Nat. Bankr. Reg. 196.

MISTAKE. Clerical error: omission of creditors.-A mere clerical mistake occurring in the proceedings in bankruptcy, though resulting in a failure to specially notify a creditor, will not destroy the effect of the proceedings as regards such creditor. In the absence of fraud, the general advertisement, as provided by section 11, is sufficient to include all creditors. Sup. Ct., Missouri. Thornton v. Hogan, 17 Nat. Baukr. Reg. 277.

MORTGAGE.

Creditors holding and selling at auction: when not entitled to vote for assignee.- After the adjudication, a creditor, who held a mortgage for fifteen thousand

EVIDENCE.

dollars on the bankrupt's real estate, had it sold at

CRIMINAL LAW. public auction and purchased it himself for one hun

1. Burglary: ownership of premises entered : dedred and forty-two dollars and fifty cents. He then

scription of, in indictment.-In an indictment for burproved for the residue of the mortgage as an unsecured

glary, in the first degree, in breaking into and entering claim at the first meeting of the creditors. The regis

in the night time the dwelling-house of another, etc., ter allowed the proof against objections and permitted

the ownership of the dwelling-house may be laid to be him to vote for assignee, whereby a majority in value

in the members of a copartnership, when the facts of of the creditors was obtained. Held, that no such

the case warrant it. When the members of a firm mode of ascertaining the value of mortgage security is

held and occupied the building into which the burglarecognized by the Bankrupt Act; that the register had

rious entry was made, using the lower story for the mo authority to admit the proof and allow the vote

purposes of their business, and in the upper rooms one, against objection, and that the choice of the assignee only, of the partners, and some other persons lived, under such circumstances was irregular. U. 8. Dist.

and were present the night of the burglary. Held, Ct., New Jersey. In re Hunt, 17 Nat. Bankr. Reg. 205.

that it was proper, in the indictment, to lay the ownership of the building the members of the firm.

Judgment below affirmed. Quinn, plaintiff in error, v. COURT OF APPEALS ABSTRACT.

People. Opinion by Folger, J. Rapallo and An

drews, JJ., dissented. ATTORNEY AND CLIENT.

2. What constitutes a dwelling-house : store with unAction against attorney for negligence: what will not

connected rooms used for living purposes in upper sustain.-In an action against his attorneys for alleged

story of same building.The burglary was into one of misconduct and negligence in the management of a

the lower rooms of the building which were used for a suit brought by them for plaintiff against one W. in

store. The upper part of the building used for living failing, before judgment, to secure a lien upon the

purposes, and where people slept had no internal comproperty of W., there was no allegation or proof that

munication with the store below, but to go from one they could have either filed a lis pendens, or procured

part to the other, one must go out doors. Held, that an attachment, or that there was ground for an order

the room broken into was part of a dwelling-house, of arrest, attachment or a lis pendens. Held, that

within the definition of burglary, in the first degree, plaintiff was not entitled to sustain his action, that a

in 2 R. S. 668, $ 10, subd. 1, and $ 16. Ib. nonsuit would have been proper, and that a verdict

[Decided January 15, 1878. Reported below, 11 Hun. for defendants could not be set aside. Judgment 336.] below affirmed. Jaquins v. Hagner. Opinion by Earl, J. [Decided February 5, 1878.]

Evidence to contradict: what competent.--A witness

for the plaintiff had testified that defendant had said, CONSTITUTIONAL LAW.

in reference to a piano which was in controversy, that General Drainage Act of 1869, constitutional.--The he had given it to plaintiff, for a present. The witGeneral Drainage Act of 1869 (chap. 888) is not open ness testified that she thought that one A was present to the constitutional objection that it does not provide at the conversation. A, being sworn for defendant, for a public purpose, for the purpose mentioned said he was never present at any such conversation, namely, the public health is one, nor to the objection He was then asked, on cross-examination, if, and that it takes private property without due process of denied that he had told one D that defendant had law, for it provides for proper and sufficient proceed- told him that he had given the piano to plaintiff. D ings for the taking of property. Orders below affirmed. was then called, for plaintiff, and testified that A had In re Ryers. Opinion by Folger, J. Church, C. J., told him that defendant had told him that he had given dissented.

the piano to plaintiff. Held, that the testimony of the [Decided January 15, 1878. Reported below, 10 Hun, 93.) latter witness was admissible to contradict A. Judg

ment below affirmed. Sparrowhawk v. Sparrowhawk. CORPORATION.

Opinion by Miller, J. Allen, Folger and Earl, JJ., dis

sented. Liability of stockholders : enforcement of: form of

[Decided March 19, 1878. Reported below, 11 Hun, action.-Under a statute of New Jersey it is provided

528.] that, “when the whole capital of a corporation shall not

JURISDICTION. be paid in, and the capital paid shall not be sufficient Judicial officer interested in result of proceeding : to satisfy the claims of its creditors, each stockholder when competent to act. —Where a judicial officer has shall be bound to pay, on each share held by him, the not so direct an interest in the cause or matter that the sum necessary to complete the amount of such share result must necessarily affect him to his personal or peas fixed by the charter of the company, or such pro- cuniary loss or gain, or where his personal or pecuniary portion of that sum as shall be required to satisfy the interest is minute and he has so exclusive jurisdiction of debts of the company.” This is similar to the statute the matter by constitution or by statute, that his refusal of this State. 1R. S. 600, 85. Held, that under this to act will prevent fany proceeding in it, there he may statute there could not be a recovery by a single cred- act so far as that there may not be a failure of remedy itor against a single stockholder, but the action must, or a failure of justice. Accordingly where the county to charge the stockholder who had not fully paid up, judge who is exclusively designated under the General be in equity, bringing in the other stockholders in like Drainage Act to appoint commissioners, whose duty it predicament with him. Judgment below affirmed. is to determine what lands are to be taken for a proGriffith v. Mangam. Opinion by Folger, J.

posed drain, and what property benefited, and the [Decided April 16, 1878. Reported below, 42 N. Y. amount of the assessment upon the lands of each Superior, 369.]

owner, was the owner of some of the lands to be affect

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