Volume 23 — Abbott's New Cases

<p>1. Assignments for benefit of creditors; extrinsic preferences.] The rule in Riessner & Co. v. Cohn, 22 Abb. N. 0. 312, that transfers, and confessions of judgment in anticipation of making a general, assignment, and intended to evade the statutory limit upon preferences, are void,—reiterated.*</p> <p>2. The same; creditor without judgment may sue.} If the assigneefails in his duty to sue to set aside such preferences, a creditor,; though without judgment, may do so.</p>

<p>1. Assignments for' benefit of creditor's, and extrinsic preferences.] Judgments confessed by debtors about to make an assignment for benefit of creditors, the effect of which judgments will be to prefer creditors beyond the amount of one-third in value of the assigned estate, after deduction of wages, costs, etc., in evasion of L. 1887 (c. 503), which prohibits preference in excess of one-third, •—are void, if made as parts of one plan for the disposal of all their property.*</p> <p>2. The same ; effect on assignment.] It seems that the assignment is not thereby necessarily avoided; but where the assignment was merely colorable, and fraudulent upon creditors, it should also be set aside.</p>

<p>Interpleader of adverse claimant to savings lank deposit. ] An application by a savings bank to compel an adverse claimant of a deposit to interplead with the depositor, under L. 1882, c. 489, § 259, may be granted, although he does not claim the whole of the deposit.*</p>

<p>1. Security for costs—further security.] When a plaintiff who hag already given security for costs under the statute, by undertaking, is required to give further security in addition thereto, such further security must also be by undertaking.</p> <p>2. The same—deposit. ] It is only when the existing security is a money deposit, that a deposit can be received as a further security.</p> <p>3. The same—power of court.] Under the Code of Civil Procedure, the court has no inherent power apart from statute, to require security for costs.*</p>

I. Appeal from an order denying a motion to vacate an ex parte order for the examination of a defendant before-trial and continuing that order. John Keenan brought this action against John O’Brien and Hem an Clark to obtain an accounting and dissolution of a co-partnership alleged to exist between the plaintiff and. the defendants.

<p>1. Habeas Corpus in federal court.] Under U. S. Rev. Stat. §§ 752, 753,* a federal court may issue a writ of habeas corpus, where a prisoner is held under the process of a State court in violation of a law or treaty of the United States.</p> <p>3. Arrest; immunity of extradited person.~\ A person brought here from a foreign country charged with a crime, upon a trial for which he is subsequently acquitted, must have a reasonable time to leave the country, and an arrest in a civil suit before the lapse of such reasonable time will be ineffective to hold the prisoner who must under such circumstances be discharged and allowed such reasonable time to leave the country.</p>

<p>1. Arrest; cause of action on contract or in tort.] Arrest may be ordered, under Code Civ. Pro. § 549, as amended in 1886, in an action on contract, if a fraud such as is mentioned in the statute be also alleged, although not with damage.</p> <p>2. Pleading; allegation of ground of arrest.] The fact that the pleader, after stating a cause of action on contract, adds, in compliance with that provision, allegations showing a fraud which is ground for arrest does not change the nature of the cause of action, but will avail to sustain the arrest.*</p>

<p>Appeal from decree of the surrogate.</p> <p>The facts are stated in 22 Abb. A7. G. 289, 292, where the decision appealed from is reported.</p>

<p>1. JSquitable estoppel.] A party who has successfully set up an invalid. judgment against himself as being valid, and thereby defeated his adversary’s claim on the original consideration, cannot thereafter escape liability upon the judgment by showing the invalidity.*</p> <p>2. Pleading; suit in equity or at law.} Although the mere fact that a party seeks to avail himself of an equitable estoppel does not require resort to a court of equity, yet where a judgment rendered when the court had not required jurisdiction of the person has been made valid against him by equitable estoppel, and in an action on the judgment it is essential to allege jurisdictional facts, the remedy at law is doubtful, and a bill in equity will lie to enforce the judgment.</p> <p>8. The same.} But where the defendant in the judgment had obtained in the bankruptcy court an order canceling the creditor’s proofs of the original debt, on the ground that the creditor had recovered such judgment, and that it was still in force, and would not be discharged, the estoppel against pleading the discharge, is not ground for a suit in equity upon the judgment, for it would be available against a plea of the discharge in a suit at law upon the judgment.</p>

<p>1. Banicing; right to money on deposit.] A bank is not protected in making a payment on a check of its depositor after it has received notice that the fund was obtained by the depositor by fraud, and that the true owner claims it.</p> <p>■2. The same; effect of attachment.] It makes no difference that the payment is made upon a check given by the depositor to an attaching creditor in a suit against the depositor only.</p> <p>:3. Evidence,—tracing identity of fundi] The rule that in the absence of circumstances to require a different presumption, drafts against a deposit account, are presumed to have been paid iu the order in which they are drawn, so that earlier checks are treated as with drawing, the earlier deposits,—applied*</p> <p>4. Money received—reclaiming paymeiit from, third person.] Where one who has obtained money by fraud deposits it in bank, a third person who receives and collects his check against the fund, after notice of the claim of the true owner, is liable to an action by the latter for the money so received.</p> <p>5. Parties, in action therefor.] The true owner of moneys which one who has obtained them by fraud has deposited in bank in his own name, may maintain an action against the bank if after notice it pays out such moneys on the depositor’s check, and against a third person who after notice receives and collects the depositor’s check; and may join both in one action, so as to recover against either or' both as the result may justify.</p> <p>6. Trial election.] Hence it is error to compel the plaintiff for such. an action to elect whether he will proceed against one or the other.</p> <p>7. Judgment—primary and secondary liability.] The liability of each. having been established at the trial, the plaintiff may have judgment against both, with a provision that if it be not satisfied by the defendant, who received that money, it may be enforced against the bank.</p> <p>8. Forms] Form of a complaint, and judgment in such a case.</p>

<p>1. Compromise with one of several joint debtors.] Code. Civ. Pro. § 1493. A release of one of several partners after dissolution must release all liability incurred by reason of the partnership ; but if in terms it purports to release only specified liabilities, it may be alleged, and shown by extrinsic evidence, that there was no other liability.</p> <p>-2. Parties.—Surviving partners and estate of deceased.] The remedies of a creditor against the estate of a deceased partner—stated.</p>

<p>1. Warehouseman's lien.] Under L. 1885, c. 526, establishing and defining the lien of a warehouseman—the lien on goods in store is general, and not special or limited to the charge for the storage of those particular goods.</p> <p>2. The history of the lien of warehousemen considered.</p>

Trial at the circuit. Agnes Ronald sued upon a certificate of insurance issued by the defendant. Mutual Reserve Fund Life Association, upon the life of George Ronald and made payable to the plaintiff. The certificate contained a stipulation providing that if any of the payments stipulated should not be paid when due, the policy should become null and void, and all payments made thereon should be forfeited to the association.

<p>1. Trials ; findings.] On a trial without jury, .all the findings of fact and conclusions of law, necessary or proper to support the judgment, must be stated in a single decision.</p> <p>2. Same.] If the judge or referee answers favorably separate requests to find, submitted by separate parties, the appellate court will not hear an appeal, upon an appeal book presenting the several sets of findings separately, but they must be settled so as to present in one decision all that are necessary to support the judgment.*</p> <p>8. Effect of immaterial findings.] It seems that findings not embodied in the decision are no part of the judgment.*</p>

<p>1. Injunction ; disposition of assets of a combination of corporations.]' Where the answer to a motion for an injunction to restrain the-trustees and members of a combination of corporations from paying dividends or parting with the assets or moneys of the combina- ; tion until final judgment in the action brought by the receiver appointed under a judgment annulling the charter of one of the members of the combination for illegally joining it,—the action being brought for the purpose of distributing the assets of the combination among its various members,—unequivocally denies that the defendants are about to convey or dispose of such property, the motion should be denied.</p> <p>2. Same; leave to renew.] The truth of the allegations that from information derived by the receiver the defendants intend to dispose of all the assets of the combination being denied by the defendants, an injunction restraining such disposition will not be granted where the facts of such information are withheld; but leave to renew the motion should be given.upon the receiver’s ascertaining such an intent on the part of the defendants.</p>

<p>Partnership ; use of term ‘1 successors ” to dissolved firm.] Plaintiff and defendants, having been copartners in business, dissolved their firm, plaintift selling and assigning to defendants all “his right, title, estate and interest in and to the assets of said firm of any and every nature, kind and description,” including an unexpired lease of the premises occupied by the firm. In an action brought to enjoin defendants from describing themselves on their signs, stationery, etc., as “ successors to” the dissolved firm—Held, sustaining an injunction pendente lite, that the transactions between the parties had not expressly or impliedly authorized such use of the old firm name, and in the absence of such authority, its use was without right and would be enjoined. Í</p>

<p>Contracts ; partner's agreement to take back real property contributed by him, at a fixed price; effect of destruction byjb'e.] Upon a co-partnership accounting it appeared that defendants had contributed their factory property, agreeing to take it back at the expiration of the partnership at a fixed price. During the continuance of the partnership, and while the title to such factory property was vested in the firm, the buildings were destroyed by fire, and insurance moneys collected by the firm. In consequence of the destruction of the buildings, the value of the property greatly decreased.-—■ Held, that the defendants were to be regarded as having contracted to purchase the propert3r from the firm at the time specified, the title, however, being in the firm ; that such agreement had reference to the continued existence of the property in substantially the same condition ; that they had never agreed to-purchase the property without the buildings, and it being impossible for the plaintiff to carry out the agreement as contemplated by the parties, the defendants’ contract could not be enforced, and it was error to charge them with the contract price less the insurance received.</p>

<p>Probate proceeding; motion for costs.</p> <p>8. Edwin Day, for contestants.'</p>

<p>1. Evidence ; admissibility of admission in a pleading in another suit.] ■The answer of the defendant as executor interposed in another action alleged upon information and belief that the defendant's testator and the plaintiff there were jointly interested in business, —held, that such admission was not to be received as evidence of' the co-partnership relations of those parties in this action.*</p> <p>2. Same; referee's finding.] The fact that the referee in such other action found the statement as to the co-partnership to be correct does not make such an admission admissible in proof of suchi facts ; nor is the finding of the referee itself admissible.*</p>

Appeal by defendant from a judgment of foreclosure and sale. The action was brought by Julius J. Frank against Edward A. Davis to foreclose a mortgage on premises in -the city of New York. The facts are'fully stated in the opinion.

<p>1. Pleading; motion to make definite and certain.] Under Code Civ. Pro., section 481, a defendant is entitled to be informed by the complaint of the facts constituting the plaintiff’s cause of action, and it is not an answer to a motion to make a complaint more definite and certain that the defendant has become acquainted with all the facts upon which plaintiff’s claim is founded in another action relating to the same subject matter.</p> <p>2. The same.] A complaint alleging a modification of a contract will be required to give the substance or full terms of the alleged modification, but not to state the time and place and whether or not by a writing.</p>

a trial by the court. This ¡is an action, brought by the plaintiffs, John C. Mahr and others, against Charles H. Bartlett and the Norwich Fire Insurance Society, to establish their rights in, and to restrain the defendant insurance society from paying over the proceeds of a certain policy of fire insurance for $2,000, issued by them, and embracing personal property •belonging to the defendant Bartlett, contained in a building •at Muscatine, Iowa.

Motion to vacate judgment and to allow the defendant, to defend on the merits. The defendant in this action was sued under the name-of John Horn. Defendant served his answer denying all the allegations of the complaint and describing himself as-John A. Horan. Service of the answer was duly admitted by plaintiff’s attorney.