BRU8H-8WAN ELECTRIci LIGHT CO. tl. BRU8H ELECTRIC LIGHT CO.
225:.
whieh the court may make in thisca8e. In my opinion the court woUld assert its dignity with a needlessly high hand if it rejected an application to come in and prevent the court from being made the agent of wrong by parties acting .collusively, upon purely artificial reasons. If what Young alleges is true, the court, with only the present parties on the record, to would find no other way than to go on to decree a sale, giving the purchaser of the mortgaged property, turning over the proceeds to parties having no right, and thus deprive a judgment creditor, who was on the threshold, at the time of this court's taking cognizance of the case, of all remedy, unless it be the circuitous one of an independent bill. In my opinion the proper course is to take the precaution in the principal case, if the means are afforded. It may tum that out all these charges mlj.de by Young are unfounded; but there is .sufficient color to them to require the court to give them attention. At the hearing an offer was made on behalf of the petitioner to release the levy made altogether, or with leave to make a new one in terms subordinate to the race'iver's possession, and the control of the court in this cause, as this court might direct. In my opinion it is not necessary to do this. A party may purge himself of actual contempt by oral explanation before the court, and upon the petitioner being admitted the court will have full control of his levy. Whether actual possession under a levy is necessary to the perfection of a lien by execution I do not consider, for I am impressed that an inchoate levy is sufficient, and anl indined to think that the court ought to concede the right to intervene where its process by concurrence of the original parties has interrupted the creditor with an execution in his hand, and a purpose to forthwith levy it, and the object of using silchprocess is to defeat·,the creditor; and that an actual levy might be 'dispensed with. An order may be entered giving the petitioner leave to intervene as a defendant, and to answer the bill within 20 days after the entry of this order.
BRUSH-SWAN ELECTRIC LIGHT
Co. v. BRUSH ELECTRIC LIGHT Co. June 20,1890.)
(Circtll£t Court, S. D. New York. SPECIFIC PERFORMANCE-INSOI,VENCY AS DEFENSE.
The insolvency of the party seeking the specific enforcement of a contract la no bar to the suit when the contract was renewed by the other party with knowledge of such insolvency.
In Equity. Bill for 8pecific performance. On motion for rehearing. For former opinion, stating the facts, see 41 Fed. Rep. 163. . Joseph H. Choate and WiUiam G. Wilson, for complainant. John E. ParsorI.8, Albert Stickney, and Gilbert H. Crawford, for defendant. COXE, J. . The questions involved in this controversy have been again carefully examined; SOllie of the points before argued are reiterated v.43F.no.3-15
226:
.0'
nDEBALJUilPORTER,
vot'S.
with, perhaps, additional force; but no new proposition, either' oHaw' or fact; has been advanced. 41 Fed. Rep. 163. It is again argued that the complainant's insolvency is a bar to relief, but the authorities cited Seem hardly applicable to the present facts. I cannot find that it has ever been held that mere insolvency, even occurring after the agreement, is a sufficient answer to a bill like this. Such doctrine would, therefore, be quite out of place in a cause where there is neither concealment nor fraud, and where the defenda.ntvoluntarily made the contract with full knowledge of the complainant's financial condition. Surely, no case has gone to,the extent of holdingLinsolvency a barrier where such facts concur. The :defendant was under no obligation to' continue its business with an insolvent party,"but having chosen to do so it 'cannot now take advantage of a fact which was as obvious when the renewal was made as it is t().;,day. T.hecourt at niwi prius used its -best endeavors to untangle a compUcatedcontroversy. As the situation remainsuncha.nged the ca.se may be one for an appeal, but not for a. rehearing. The motion is denied.
NATIONAL PARK BANK Oll' NEW. YORK tl. REMSEN.
{Of,rcwU Court, S. D. NetW York: JulyBl,'1890.) 1.
s: "X. (8th Ed.) p. 1957,1 12,i provides tb!lot, f,or faUure to file the an,nual o:t.tbe capital and iDdeotedness of any wrporation, as therein prescribed', tlle trUstees 'shall be liable for all debts of the' corporation then existing, or . contraCted before such report shllJll be .(!led. Ueld, t'l;Ulot .the trustees cannot be sub, jeoted 'for'an allege'd liability of the cOrporation accruing on an accommodation indorsement, which, under its oharter, it had noauthoritty to make, and which OOl:1Se- . quently did not bind it. NEGOTIABLE INSTRUMENTS-AcOOMMODATION INDORSEMBNT-NoTICE.
OORPORiflOtfi-'l1lUSTEES-LuBJLITY ','!'OR CoRPOiu;TB' DBBTs.
9.
The fact that a Dote is presented for discount by the maker is notice to the diacounter that the indorsement thereon is an accommodation indorsement.
Jitanci8 O. Barlow, for plaintiff. WiUiam H. IngersoU; for (JOXE,J;, This action is to' olthe defendant, as trustee of the German-AmericaIi; Mutual Warehousing & Security Company, the amount due upon two notes, indorsed by it, upon the ground that the trustees are liable for the :debtsofthe corporation because no annual report of its financial conditibn was filed, as reqUired by the general manufacturing act of :1848. Section 12 provides that for failure to file, the trustees "shall be jointly and severally liable Jor an the debts of the company then existing, and for all that shall be contracted before such rapOrtshaIH>emRde." BRev. St. ,N. Y. (8th Ed.) 1957. Fiistin the order of proof it -is necessary for the plaintiff to establish that the amount
AtLaw."i
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