" I return your note for $5,000 berein. I cannot use it except to discredit you still more. lowe so much money outside I cannot stand the pressUre: I am ruined and penniless. I console myself in your case tbat the U1'eat bargain you, made in tbe Newaygo lands will in some great measure compensate you for tbe loss you must incur, for I cannot take care of the due early in February." . .
This acceptance was by Cadman of a draft drawn on him by Peter to pay the amount of the previous draft of Cadman on Peter at<;me day's sight, and was for $5,000. Cadman returned one of the $5,000 notes, which he did not use, and, this left outstanding of the accommodation paper the acceptance and one note, aggregating $10,000, besides the notes for $20,000 given to Cadman at the qate of the deed, and which had not yet matured. I am unable to reconcile the statements of this letter with Cadman's version of the understanding as to the purpose of the deed. He recognizes the fact that Peter had made Us, great bargain" in the land in likely to compensate in a great measure the loss Peter must incur on account of Cadman. How had Peter made f'a 'great bargain" in this land unless by a purchase of it and selling it for JIlore than it cost? If Cadman had a beneficial interest, a right to redeem, or any sort of interest in the land, or in the proceeds of any sale, would he· have made the statements of the letter? In 4istestimony he claimed the land to be worth at that time a large SUIP j.n excess of the amount he had received Peter's paper for. If the deed was understood to be security there was no reasonable ground for loss to Peter. No man of common prudence and understanding would have written such a letter while he regarded himself as the owner in equity of, or as having s, valuable beneficiary interest in, the land. A decree will be entered dismissing the billo! ,oomplaint for want of merits.
(Circuit Court, 8. D. New York.
April 21, 1882,)
CoNFISCATION OD' PnOPERTy-REco'vERY OD' AVAILS-CLAIM OD' PROPORTION.
About the close of the late cIvil war a quantity of cotton was seized by the United States treasury agents aQ.d confiscated aa pronerty uaed in aid of the rebellion... Subaequentlx the owner. of the in tlfp court of claims and recovered the v,alue of the property so seized and sold, and afterwards died. After hiS death a -cla'ihl was mad6by Ii t1rlrdparty as owner
of Ii. portion of the cotton seized, and this action instituted against thc executor of decedent to recover the value thereof. Held, that the will of decedent describing the lots claimed by him, and corresponding in amount· with the claim made by such third party, and advertisements of the same through the newspapers requesting the owner to come forward, pay advances and expenses, prove ownership, and receive balance due; and the entries in the books of decedent of'the same, as cotton owned by a party unknowh,-are satisfactory proof of ownership in the his portion of the avails received by decedent.
SAME-CLAIM OF THIRD PARTY-RIGHT TO' RECOVER.
Where it was shown by proof that the company, claiming a proportion of the avails of cotton seized by the government and sold, as property' used in aid of the rebellion, but the avails of Which had been afterwards reimbursed to t.he owner, was chartered for the purpose of owning, navigating, and freighting vessels engaged in foreign and domestic commerce, and also that it was en. gaged in running the bJockade, but it did not show that the decedent,own61 of the property confiacated and ,sold, or the defendant in tlIis actiim, were in collusion such company hlanyu,nlawful act, couple9 tlJ.e fa<;tof the recovery of thea"ails by defendant, no good reason is shown Why the company or its assignee might not 'recover his proportion of the avails from the estate of the decedent. ", Where an assignment 1Vas made by a company having a valid claim against the testator, who held'the avails of the property in trust for the assignor, the company having a right'to charge him as such trustee, and the disposition of the cotton seized having been directly within their corporate power, and tb,e disposition of the avails impliedly within the same scope, and the president and all the directors joined in the execution of the assignment, lield, sufficient to transfer the title to the claim to the plaintiff.
SAME-;-AsSIGNMENT OF RIGHT ,OF ACTION.
SAME-ACTION-MATERIAL AI.LEGATIONS-l'tfATTERS OF INDUCEUENT.
Where the material allegations of the bill are proved, an allegation that the executor received the cotton as executor of the testator. and held it as such when it was seized, when in fact he received it as surviving partner of testator, is mere matter of inducement, and the bill ought not, therefore. to fail when the material allegations are proved.
SAME-DECREE.,....INTlllREST ON A VAILS,
The avails are the amount received for the plaintiff's cotton after deducting the charges and expenses of their recovery, the amount of expense to be ascertained by an accounting, but without interest. unless such avails were so invested as to bear interest, in which case the plaintiff would be entitled to the interest they bore.
Jos. B. Stewart, for orator. Edwa1'lj, N. Dickerson, for 4efendapt.
WHEELER, D. J. The defendant is the executor of thewiIl of Gazaway B. Lamar, who owned, was interested in, and connected with large amounts of .cotton which were seized in the southern states by United States treasury agents at about the close of the war of the
M'CAY V. LAMAR.
rebellion and sold, and the preceeds of which were turned into the treasury of the United States. He brought proceedings in the court of claims for the recovery of these avails, and therein recovered in April, 1874, the sum of $579,343.51. The orator claims that $23,844.88 of this sum was recovered for 136 bales which, subject to some claim for advances in which Lamar was interested, belonged. to the Richmond Importing & Exporting Company, a corporation of Virginia, and that the right of that company to this cotton and. its proceeds has been assigned to him. This bill is brought for the recovery of these avails; and the cause has been heard upon bili, answer, replication, proofs, and argument of counsel. Three principal questions have been made in respect to the orator's Were emright of recovery. One is as to whether these 136 hraced in Lamar's recovery.. Upon this question careful examinations of the proofs lead to the 'conclusion that they were. The proof of the proceedings in the court of claims would alone leave the matter somewhat in doubt; perhaps too much so for ai foundation'for a recovery. But while the case was pending he made his Will, that of which these clauses: "Itisimyfurther the defendariHs executor, will arid desire,andl hereby direct my executors, to press my:claims upon the government the United States for the payment of the fo!lowing cotton, which' are now before the court of claims." Among other lots the following was specified: "136 bales cotton belonging to a gentleman in Richmond, Virginia, on which C. A. Lamar made advances." "When all the collections for this private cotton are made, and the amount placed to the credit of the several accounts, and interest charged to each account for my advances, then a division must be made of the net balance to the private account of each." After the recovery he advertises in the Richmond Enquirer for the owner of two parcels of cotton, and this lot was in two parcels, stating, "I have to-day received payment for the same from the United States treasury," and requesting the owner to come' forward, pay advances and expenses, prove ownership, and receive the balance due. The proofs also show that he entered this cotton in his books as belonging to an owner unknown, but advertised for in Richmond, charged it there to the United States at $23,844.88, and credited to the United States that sum as received for it. This clearly shows that his claim embraced this cotton; that he understood that he recovered for it; and altogether the proof is quite satisfactory that he did recover for it. The proof, including correspondence, shows quite clearly that v.12,no.4-24
this cottonwt:lls purchased and forwarded to C. A. Lamar by a Mr. Hambleton, of Richmond, as agent for the Richmond Importing & Exporting Company, and was owned by that company. Another question is as to whether that company could have recovit is said, if that company could ered for this cotton or its avails, not its assignee could not. It is argued that it could not, because it was chartered and organized to run the blockade and aid the rebellion. The proof shows that it was chartered "for the purpose of owning, navigating, and freighting ships and other vessels engaged in foreign and domestic commerce, and of buying and selling the products and commodities so freighted or intended to be freighted," and that it was engaged in running the blockade, and in that way indirectly, if not directly, to some extent aiding the rebellion. But the proof does not show that C. A. Lamar or Gazaway B. Lamar received this cotton under any arrangement that it should be used in aid of the .rebellion, or in any unlawful manner, such that it could the hands of either; and the fact that it was not be recovered for it recovered for by the latter shows that nothing he was doing it. The corporation appears to, have been. lawforfeited ful enough in itself. The business it was ,chart!ill'ed for. might be lawful or In transacting unlawfpl bqailless it would incur the consequences of its unlawful acts the same- as a person, but such unlawful, acts would not of themselves forfeit its property not involved in them, nor its other lawful rights. As the case is presented, no good reason is shown why this company might not, in its own name, have recovered these avails of the defendant's testator in his life-time, or of his executor since his decease. The other principal question is whether the claim is so assigned to the orator that he can recover upon it in his own name. It is not questioned but that an assignee a mere right of action or may maintain a suit inequity upon it in his own name; it is strenuously argued that no. real and valid assignment of thiaclaim is shown" 'That company had a valid claim ?-gainst Mr. Lamar; the testator. He held these avails of the property of the company in trust for the company. The company had a right to charge him as its trustee of the funds, whether he was willing or not; he seems to have been willing, however, and ,to bave charged himself so far: as he could. ThedispositioU' of the cotton wlJ.S directly within the corporate powers of the cOll)pany; and, thfl disposition of .the avails of the cotton was impliedly within the same scope. Tbe charter provided that "the affairs of the ·compa.ny shaJld:>e man-
ll'OAY V. LAMAR.
<1ged by a president and board of directors, whose term of office, and their number, shall be determined and elected by the stockholders, and the said board of directors shall possess all the corporate powers of the company." The proof shows that no meeting of the company had been held, for any purpose, for many years, and that very little or no corporate business had been transacted within a number of years before the assignment; It does not show what term of office was determined upon for the directors. It does show by the testimony of the officers who the directors were at the time, which was competent for that purpose, especially as the proof also shows that the records were destroyed. One of them died. The president and all the others joined in the execu.tion of the assignment. This seems to be sufficient to transfer the title to the claim to the orator. The bill alleges that Gazaway B. Lamar received this cotton as executor of C. A. Lamar, and held it as such when it was The answer denies that he was executor of C. A. Lamar, or held it as such. The proof does not support the bill, but sustains the auswer on this point. He appears to have received it as surviving , partner. "This failure to sustain the bill 'in this respect is argued to be fatal to the right to recover upon the bill.. , This argument is not considered to be:well founded. The orator does not seek to recover through C.A. Lam(l,I', nor upon any right of his, nor upon any obligation incurred by him. How this cotton came' into the hands of Gazaway B. Lamar is wholly immaterial in this case. The'statement of it is mere inducement. The material facts are that the cotton belongedtb the Richmond Importing & Exporting Company, and that the testator received the avails of it, and that the orator has succeeded to the right of the company to the avails. The bill ought not to fail when the material allegations are proved. The orator appears to be entitled to a decree for the payment of these avails. The avails are the amount received for this cotton after deducting the expenses belonging to it and the recovery for it. It is of recovering the whole sum was $100,stipulated that the 000. The expense of recovering this part may be in proportion and may not; it is not stipulated what it would be. That fact is to be ascertained. The Qrator claims interest on the avails, and it is included in 'the prayer of the bill. On the facts stated the orator is not entitled to interest as such. The testator was not a borrower of the money, nor was he wrongfully withholding it. Still, if these avails were so ihvested as to bear interest, the orator would be entitledoo:·the'interest they bore asa part of the avails.. An aceol.!Ilt,
therefore, is necessary of the expenses and charges belonging to this cotton, and to the recovery of the sum received for it, and of the interest received, if any. Let there be a decree that an account be taken of the charges and expenses chargeable to this cotton, and to the recovery of what was received for it, and of the interest received upon the avails of it, if any, and for the payment of the balance to the orator out of any assets of the estate in the hands of the defendant, with costs.
May 15, 1882.)
Court, N. D. Itlinoi8.
A creditor of a dissolved partnership, being a non-resident of is not compelled to go into the state tribunal for the purpose' of' asserting hili rights, but may proceed directly against the individual representatives of the deceased copartners, or ,any person havipg ,of the 'Copartnership assets, no matter under what right he claims them. He, may proceed at once, in equity, to have the assets marshalled and distributed 'to tlie' c"reditorS.
S. G. Boyce, for complainant. Roberts It Hutchinson, for defendant. BLODGETT, D. J., (orally.) The complainant, wlro is a citizen of tLe state of New York, charges by his bill that from ,February 1, 1878, to December 97,.1879, WilliamR. Gould,Rtld M. Brooks Gould were copartners, doing business in this city, as merchants and dealers in ornamental hardware, under the firm nameofW. R. & M. B. Gould, and ;that dJring such time the complainant sold: and, delivered the firm goods to the value of $5,011.60, .lor whioh"Jhe firm became justly indebted and that $2,511..60 'of lluc;h'indebtedness remains due and wholly unpaid. That on the twenty-seventh day of December, 1879, M.Brooks Gould died intestate in this ci.ty, and that afterwards-that is; on the ,twelfth of January, 1880--4hedefendant Newbury C. Hills waB, by the probate couri, .of Cook county, duly appointed sole administrator of the estate of said M. ;Brooks Gould, and duly accepted and entered upon the duties of his offie.e; that on the fifteenth of June, 1880, said William R. Gould died in"this city. leaving a will, whereby defendallt Amelia Gould was duly. appointed