The New York Herald Newspaper, October 1, 1854, Page 3

IMPORTANT LAW REPORTS. Deckions in the Supreme, Superier, Marine and United States Ceurts. TBE GREAT INDIANA BOND CLAIM. Interesting to Lawyers and Litigants. ’ Supreme Court—General Term. WAFOMTANT DECISION ON THE INDIANA CLAIM. By Hon. Juige Roosevelt. Serr. 25.—Pracy ve. Zalmage, President of the North American Trust and Banking Company.—Among the elsime presented for liquidation to the Receiver of the we Nerth American Trast and Banking Company, was ene on bebalf of the State of indians for $175,000, im the form of cighteen certificates of deposit of the deno- winations of nine and ten thousand dollars each, dated Jen. 24, 1811, and payable with interest at periods varyiog ftom five to twenty two mon'hs after date. These cer- tifeates, it appears, were renewals of others previously given, and those again traced their origin toa written agreement of the 18th of January, 1889, between the free bank formed under the general yew, en the one part, and the Morris Canal Compsay ; (acting according to-the testimony as agents for the State of Indiana), on the other It was an agreement em the one part, without reference to any particular urpore, to sell twelve hundred ‘bonds of the state of Wakne?? and-an the other, to give in payment the ‘‘ne- go'iable obligations’ of the Trust Company, ab not on demand, but on time, with ioterest—the lowest de- romination ef which (the highest being $:60,000) need the terms of the agreement have been less than Such an sgreement, says the Recsiver, was an uclawfal de:lizg by s corp:rationin public stooks, and an ualewfal issuing by © corporation of @ prohibited of bank notes, that no rights, there. fore, le by « court of justice can accrue from it. To understand the point of the Keceiver’s objection to the claim, and of the answer to it, a brief recurrence to certain matters of public history i¢ necessary. For many years pricr to 1838 the business of banking in this “tate ‘was a chartered monopoly, made so by Various express stetutory provisions, denominated collectively the Re- straining Act. This act, under severe penalties, prohi- Dbited almost every branch of banking to any aed pres = Med aiercreg is not ety thorized by cor- poral doled cut, from time to time, by sucees- sive lature to successive political or personal fa- Vorites. the granting of these charters, as may readily ‘ve conceived, in time Eecame a great abuse, so mach #0 that the convention which was called in 1821 to revise the’ State government, inserted in the then new consti- tutien a provision requiring thereafter ‘the assent of bp tie of the en él rai to (as peanek of the gislature to eve creating any pol or cor- srate.’? Favoritiem, pavershelaas, fortified as it was Bythe Restraining Act, still continued, with its atten: dent corruption, until public dissatisfaetion became so strong and so univereal that Legislature were at kag ¢ompelled to extirpate the root of the evil. Ac- or toe) , on the 4th of February, 1897, so much of the Restr lig ‘Act “as probibited a person or association of ns not incorporated from keeping offises for the purpose of receiving deposits or discounting notes or bills,’’ was re |. Andon the 18th of April, in the following year, the whole sysiem was remodelled, and the business thrown open to general competition by , the passage of s law entit'ed “An act to authorise (in- stead of restraining.) the business of banking.” Under this act, on the 18th of July, 1838, twenty individuals, invited by the Hberal ebaracter of its provisions, formed them:elves into an associstion, or partnership, which they assumed the name or style of ‘The Awerican Trustand Banking agg gd ” The tion,” thus formed, construirg the act, which author- ised their formation, as expressly intended not to per- tuste but to aboiish the principle ot corporate monopo- }, and to restore in a great degree the natural ¢: ym of banking, (It was popularly ealled the Free cing law,) in January, 1839, as already stated, eatered, into with the agents of the Indiana, as any other company of individuals e done, for the purchase trom them, on credit, ‘of $1,200,000, of State bonds, whieb, immedi- ately atten, were delivered to, ‘received’ by, and H epprel fa to i] ¥ le rerclace As the use of the compavy, and the me, as it fell still out- ‘were ander no obligation either to pay | & conseg) , for or 10 retarn the bonds of the state, or to accoant for any portion of their avails. The whole case, it will be seen, on the part of the Receiver, (aud here, it seems tome, is the error,) rests upon the assum, that whatever the Legislature may have called part- merahips, or whatever may have been the legislative in- as to their character and denomination, oy « deimgin reality corporations, they are, an¢ must be, molens volens, subject to all existing prohbitory enast- mentz, whether constitutional or merely — legis lative, affecting tbat kind or legal existences. New, whether the free banks are corporations or quasi or only associations possessed, like limited of certain corporate attributes, is to my poses of the present argument, quite the only question itutional dif- been dispored of ), did the Legislature in authorizing their self-forma- ed corporations), should apply to, these ut cor] 18) on a) new {ome ot limited partnership; and iP Rat intention, if entertained by the iswuskiog yer, expressed in manwer so clear as to require no implication or interpre- tation to discover Tule belog inflexible, and as if just as it is infiexib e, that penal enactments, wnen not Perfectly clear, admit’ of no'extension by judicial infe. renee. ‘To me it seems obvious, as well from the word. ‘ing of the free banking law, as from the whole history of its origin, progrees and fi age, that no such in‘en- , ‘tion was entertained by the ture, and for the rea- son mainly, that they wishe: was indispensable, t> ‘ avoid any pe Pepe Of the provisions of the then con- stitution, w! precluded, according to the universal ‘anderstanding at the time, the,creation or authorization ef corporate bodies by any general law. (See Acsomb': Documents fo. 122, and the case of Beers an: ‘Warner, 22 Wendell, 103). ’ They accordingly, with an almost hypereritical cautic whenever speal of ‘the contemplated partner: ik denominatei them “associations of pe: 7? in = none PM! usu! seoraent: reg epee gM ‘owed no or eonveyances exce or n dhe Preeident for the time being po ag mee individual nome; superseded tue old fashioned term stockholders by that of shareholders; and instead of as. any of the existing rezulations in re. would of nesessity apply to the sted from among b eae — and expre: 28 80 selected (tau clearly rejecting id ing upon these associations, t moneyed corporation ;” and in a whole series, from year So ont, of exbeequent statntes, uniformly 09% ly sy 7, as an Eiterent from and not synonymous with ‘associations suthorized to carry on the business of banxing by vir- tue of the act of April 18, 1838.” What right, thea, of applying, mot constitutional restric. Wegialative penal enactments, have the judi- fay, not merely that these ‘‘associations’’ are, they shall be t) lea corporate,’’ whem id—and said clearly aud repeat jt umavoidable implication—that they it is not competent to the Legisiatare as has been said, to make @ thi edgy Diack; Li’ ay competent governnent to declare, ans bound by the declaration, Es s : LS of fiveiotention. "The Lag Sten reeset, ive in' Legislature, against iret corporations, had a perfect pea! ~beolutely any or all of these penal laws, as agai the new ‘‘aesociations,’’ to de- es where specially applied, they should Seatag 2 Saas ote maa ole’ tapanin ek in terms 1 most poi p) , ‘the free banking associations were not, and in no event abould be deemed t> be “bodies corporate or politic,” but partnerships, with all the rights of natural per issuing Dilis or notes to be put in cir- , ud upon their compliance with the Dility me a ake dab potato tate ra be nn eet, ne: lebta The japreme notwi Le the ®, and undoubted evidenses of - eee en‘ion, im two eases, soon after the pas- eof the id, as in that view, and ‘that tiew only, a right to hold that these asso- eiatione, in spite of legiclative defimition to the contrary, ‘were in fact bodies corporate, within the probibition of ‘the Constitution. In the Court of Errors, however, on ae apport to the hi jurisdietion of that tribunal, and the most elaborate discussion, an opposite conclu- gion was subsequently arrived at. as distinctly expressed dm a specific resolution (see 234 Wendell), adopted 22 to 3, declaring ‘that the associations ander the general lav), ato not bodies politic or‘ ccrporate within the spirit and meaning of the Constitutim ” ‘The general banking law, uvder which the free banks are established, contains no provision expressly allowing, or expresely probtbiting, by that particular designation, the porckace of ‘‘-tate bonds.’” yarteen of its seclions are devoted entirely to booepes the community, by proj mafeguards, from losses which might arise, aa they eed too often ‘ariren, out of as vichous paper curreney—the remaining eighteen almost entirely to the removal of the then existing and much compiained of inon »poly charas- ter of the previous New York banking sy: tem, which, » while it gree ig the Legislature, deniet to the it macs of pe tho exercise of their just and nateral rights, By the Oret sections, notes intended for circala- tion a6 money, were to be engraved under the direction of the comptroller, and countersigned in his office with @ anifero, signature, and secured by a deposit, with him, of public stocks, or, of mortgages, on real estate By the other sectioné, the restraining act was to 0 great extent |, and the limited partner- shio uae effect, enlarged; giving to the mem- ders of how “associations,” upon complying with the prescribed conditions, not only exemption from acy nability beyond their share of the eommon stock, but aleo the faculty of transmit such ebat th its at- tendant responsibilities, to others, without involving a ajseolution of the firm. Contrary to the provious re strictive policy, any person en now ‘esta! ofices of discount, deposit and circulation,” “assoointe,”? or, in other xerds, form partnership for that purpoes— fuck asoeistions to have ‘power to carry om the business of baking,” and the ‘“‘insidontal posers’ necessary tor the wanegement of such business. Unter this ect, and not under epy charter of incorporation, the North American ‘Trust and Baking Company was organized. thorized, among other things, therefure—tor such are the terme of thee to Ciscouns,"’ nol aaly bills and Avion, out oiher evidenges gf debt,” withgut restriction, a their organization, i ia natural or | Tt war nu. | | vious, Again, the bonds or bills in this case | spirit. nd to Joan on any bind of securit; and to loan meney 1 'y, ‘tres!’ or ” Now “to ?? Imalades ‘10 buy; far @iscounting, in most cases, is bat another term for ‘buy. | ing at 8 dieoonnt.”” (-¢e Richardsen’s Dictionary ) And what iss LID? ‘jecsbe, in hie Law Dictionary delves a bill t for money giver. by one ; being sometimer with a penalty, called a penal bi sometimes without # penalty, then called s single bill, theagh the latterts most. frequently weed. “By a bill,” says he, “we ordinarily understanc @ single bend without a condition ”? tly the company, under the power of ‘discounting bills,” were anthorized to bay bonds, especially single bonds ; which (if we may asome ss proof matter of public noto- riety) is the précise form of these State securities. ‘They are simple acknowledgements of indebtedness and promises or epgagemente to ray, with interest, at a future xpecitied period. They are seldom even under seal, although a ‘bond under seaJ,’’ without a condition, is pone the less a note or bill, being denominated is law a “sealed note,” or “single bill” ‘he sealed notes in question, are made. it is true, by a State, and not by an individuel But the act does not limit these associations to the purchase of the notes of individuals. The power granted by it is general, and without restriction, to dis- count apy bille cr notes. Had the compsny, under this power, discounted a bond of the city of New York, no ‘one, I presume, would baye doubted the legality of the act, and wherein, so far se the present point I+ concern: ed, do State bond: differ from city bonds? Shonk it be seid that these State eogagements sre payable at a re mote day, we may ask, is s written moneyed obl pine less a bill, or note, if payable in twenty years, than if payable in twenty days? Or—for that is all we are re- quired to establich—is the instrument lers an ‘evidence of debt? whem made by a State, and payable with ia- terest at a long, than when made by an individual, or ore! corporation, an3 payable at a short perioi? That the power to purchase bills, notes, and other evidences of debt, carried with tt incidentally, if not directly, the suthority to wurehase Btate bonds, and that it was so un- stood by the Legislature, is further obvious from the second section of the act’ which provides, as origi- nally passed, that whenever any persop, or astociation of persoxs formed for the purpose of banking uncer the provisions of this act, shall | ly transfer to tre Comp- troller any portion of the public debt now created, or heresfter to be created, by the United States, or by this State, or such other States as shall be sagroree by the Comptroller, such person or association of persons shall be entitled to receive from the Com amount of circulating netes, kc. Now, hiw, we may inquire, were these associations to transfer, if they could not buy any “public debt?” And where, in the act, is the authority to buy, unless it be contained in the words, ‘power to carry om the busixess of banking, by discounting bills, motes, or other evidences of debt, or loaning money,’’ or in the words, ‘incidental powers necessary to carry on sueh business” If the grant be not embraced in these wor's itis nowhere. And yet, as will be seen, the Legislature assumes (and such ® defi. nition is conelasive) that a grant of power to purchase “public debt,”’ as well as private, is contained in the act; and axa consequence, by necessary implication, de- clares that the provision cited was inteaded to gize, and id give, the power so to do, or, more properly speak- ing, was intensed to recognize, and did recognize, the natural right, of sseociations as well as individuals, to purchase and hold that class.of obligations, aa well as bills, notes, and evidences of debt”? Thus be terms, purchasing ‘‘ evidences of debt,” unre- not only in their own nature, impart the right to deal im the public debt of a State, but they are ex- pressly areumed #0 to mean by the very Legislature which used them, and fn the very statute {n whic they were used. It may be that the grant was impolitic ; but it is the office of the judiciary, in the language of the Court of Appeals (2 Selden, 12). ‘to administer the law as the Legulature bas declared it ; not to alter the law by means of construction, in otder to rem an evil or inconvenience (sometimes =. imagioary resulting from a fair interpretation of the law.’ Under the monopoly and restrictive system of agen ar. | acts and chartered banks, as existing prior to 1838, i was usus}, I admit, to probibit thoee institutions from buying and sellirg State stocks. These special prohibi- tions, ever, are only an addi ional evidence that, without them, under the general authority to bank, would have been included the power t» buy and sell such stocks, But it is sufficient to know that one object of th banking law was to remove, not to increase ra- strictiona; to overturn, and not to re establish the ehar- tered rymem. So strong, as already stated, bad the public sentiment on this subject become, that as early as February, 1887, a fore the passage of the General Banking law, the Legislature were compelled to repeal all that portion of the Revised Statutes which rohibited incividuals, ‘‘or aesoeiations of persone not corporated,’’ from keeping offices of discount and de- posit. The general ast refore, of 1838, in this respect, Gid but recognize and enlarge the restoration of the natural righte of the citizen established the year cb or m of them were payable in Londoa. They wers, in effect, itnct itor: te the-natwre ofixaliangs eetine by (ae State of Indiana on their bankers in England; and may fairly, therefore, without undue straining of Janguage, in the absence of any express prohibition, be included in the rer, expressly Granted, of ‘buying and selling forelgn coins an of exchange.” They were engagements by the State to deliver so many pounds sterling in Lon at the periods specified, in e¢om- sideration of s certain number of dollars to be pala at certain other periods in New York, by the at all events, it is ‘and could not be denied, that the company had power to buy this class of “evidences of debt,” for the purpose of depositing them with the Comptroller; and the case shews conclu sively, that neither the State itself nor the ageate of the State, had any potice or suspicion thet the purchase was for any other objeet, or for any object whatever prohibit- ‘The courts of a state of the Union bed 6 any of its agents odo so. The Legislatare therefore of most be taken to have authorized a lawful and not an unlawful disposition of ite bonds; and if the tracs- fer in question (as we think we buve shewn it was not; was ful, it was not authorized by the State, and consequence was of no effect to pass the title, and the 4 3. Sta'e may now claim a restoration of the securities, or, in default of such restoration of the specific bonds, fall payment of their value. Sothat whe the purchase was lawful, or unlawful, the result substantially must be the same; and the Court, “in furtherance of justice,” ould ake bound, ves ote, a any amend- ment Broceedi whicl it be necessar; adapt them to either Miew of the claimants’ remedy. Ana this econsigeration too, were there no other, fur nishes a complete answer to the Receiver’s seeond objec- tion, which goes to the form of the subsequently delir- ered evidences of the Karey. sor Sh engsgement to pay, and jot to the engagement itself. For if these evidences, as interfering with the currency, were unlawful, the agents of the State of Indiana had no authority to receive them in fulfilment of the contrast, and the act, in that case, did not bind their principals. Second—But av “the ee hye onde pons ee of persons, w Genominates them, payable om ‘time, void any siatute on the subject Tiiiting io 1889, when the contract in question was made? By that contract, which bears date the 18th of January, 1830, and covers the entire t ansaction of twelve hundred thourand dollars, two of the obligations to be given by the banking company were to be for $100,900, four for $150,000, eleven for $36 363 3335, each, and one for ite rl je) j6C—denominations of billa—it would seem not very ly to enter into the currency, or te admit of any very striking “‘similitude to bank notes’ Be this as it may, however, there was no statute, as 1 have shown in the case of the Pa'mer’s lately decided by this court, prohi- Diting the giving of euch obligations ty the free banks pricr to thet of May, 1840—and even that statute, as ap- eara from ita legiaistive history, althongh expressly in- cluding associations, wes only intended to apply to “notes and bills sue or put in circulation as money,” Ad- that it comprehended “obligations”? present. its vory enactmeat was an admis- sion that no such probibitiin previously existed. Else, why did it declere, in the form and with the title of amendment, that ‘no banking association, (after the 4th of June, 1840, for that is its legal effect,) or ia- dviteal banker, as such, should issue, o pat im efr cult any or note of said association or indivicual bapker, unless the same shonid b made om demand and without interest.” If su w already, why dosiare it over szain, and why the act an amending act? Or, if ite previous exiat- bate eta 0 eo dus ingle = wary — ex; ieiative what justice ‘there, the provision penal, in Gating om the part of strangers & ous knowledge of its requirements on iture, Gneand imprisonment? ‘TPhose ebli- gations, however, (that is for the $176,000 remaining un paid,) vi ven before, wore renewed, itis said, After the act of 1840, end were renewed in a { for nine og ten Sheena’ dollars ten so as respecte am ym thet originally stipulated ; alth even those sams, it is seeioes are altogether’ too large to admit the idea of « carrency. Assuming, however, that the renewed os:tifleates, what- ever their denominations sre, within the act—a sition, I imagine, which the Instrict At‘erney would find it not very easy ®% establish on scciminal trial—they are, in that case, simply void, and leave the original obligations standing in fullforce. My conclusion, there- fore, !s, for the reasons above state, and othors dis-nss- ed by me more at lenjth in decidlag the ease of ths Palmers, that the State of Indiana, in some one if not in all aepocts of the trausaction, is entitied to rexover, and that a decree ought to be entered accozcingly. ‘The following is a summary, propositions dean cible from the foregoing decision:— 1. The free banke, under the unlimited ly given to them to “diseount,”” not only te but all other ‘‘evidences of dedt,’’ may lawfully or buy at a discount, the bonds or sealed no’ evidences, not only of t. v debt of individuals, bat of the public debt of a State; and that it matters not whether the discount bé made with a view to thelr gen eral banking operations, or for the specije purpose of depositing the bonds or notes so discounted with the core ptroller, as security for their cireulating modiam. 2, The free banks, until the act of 1840, were nof pro- hibited from issuing time papar, whether adapted to cir- culate asa heer gy Sy) net. . 3. By the act of 1840 the tree banke were not prohibited Giving, in fuldlment of lawful contrasts, their pro- wirsory engagements on time, provited sh engage- weute, in form and substance, were no‘ adapted, aad ‘were not in fact intended, ‘to eirenlate as money.” 4 Atall events, the contrast in question, mato as it Wee, long prior to the act of 1840, ond stipulating for a ymont by instelments, nope of them leas in amount han twenty. ir thousand seven huodred and fivty dol- Jars, Wea not iolation of any statute in relation to the currency, existing at the time, either in lester or in 5, The free benks, although 908 of cart . orate attribute, and rubject Roa tain cargorste Ste re not ‘bodies corporate” within the meaning e framerr either of the ooustitution or of ths general jpg law. 6. Atal eventr, pera) regulations, involving ferfelt- ure or imprisonment, ena: in reverence to corp: tions proper, cannot, by me: plication, ant espacial- ly if contrary to the known intention of t islatare, Be extended to the free banking associations, even ad? mitiing them, in other respeste, to be quasi corpora- jone Judges Mitchel and Clerke eoneurred. power express. d notes, Before Hon. Judgee Mitebell, (P. J.) Roosevelt and Clerke, SErt 26 —Pobineen os. Jreldnd. —Mrcnr-s ment affirmed with conte. When an offer ja ferden Feeyae nder 385 vee. of the code, nt Whee the amaynn verge, be to his costs to the time of the offer The words Io that section’ from the time of the be applied as ‘well to the elan: ‘eapaot recover corts,”? pay the erfendant’s costs Birdsall we the New ion Company. —Wrreuri i, J —' de‘endant may subnit to the Court only his ar; 3 from notice of this order, and the plainti also in writing, in the same time, om the ant pay ing the costs ot the argument, and of thie motion, and of the fo mer motion tor a re-argument—$10 each. The judgment now entered to stand, unless the Court ether- Wise direct; eueh Court to consist of the two Judges to whom the motion is submitted, unless they direct othervise. . ‘Sturn ve. Von Comp and Hert Oppenheim vs. the same —Mncmt, J ~The plaintiifs claim certain sums due to Them as asdiguees, and inorder to hol! the defendanta to bail they allege by affidavit that the debts were contract- edihrough fraudulent repregentations made by the de- fendants to the acsignors The defendants object thet a tort for afalse representation cannot be assigned If this be ro, it doce not affect this question. The debt is assignable, and the action is for the debt. The order allows the arrest ‘when the defendant has been gu'ity of afraud ip contracting the debt for which the action is brousht”—/See. 179, sub-divition 4)—and ¢ces nat mate the arroat depend in oy messure on the chacacter of the plaivtiff—whether he.be assience or the original creditor. But as there are various qnestions of fact left in doubt by the affidavits, there should be a rfereace to take proof of the fa ts and the referee should bs direned to take no statement on information or belief unless it be shown whether the information was im writing or no and if in writing, unless the writing be preduced—and { not in wri ing thien unless tho eource of the information be particularly staied. and also as nearly a8 pracieable the langnage inwhichit was communieated. Farther directions to be reserved and to be given at special term. The Varroll Will Case —The case of Caxroll ye, Carroll was postponed until the November term. Supreme Court—Spectal Term. Before Hon. Judge Reosevelt. Serr. 27.—Cruger ve. Cruger.—Where a trust, says the statute, shall be expressed in the inetrumeat creating the estate—which is the case in the pre- sent insiance—every sole, conveyance, or other ao of the trustees in contravention of the trust, shall be absolutely void. And is not s mortgage, attended asit must bewith a power of sale, an act contraren ing a trust to hold the estate and receive its rents and profits and pay them over from time to time to the de signated beneficiary? True, it is proposed to invest th» mortgage money in buildings to be ere:icd om the trust premises : but is it not cbvious that should the builiing+ s0 erected, from misadaptat'on, change of fashion, oF other cause, become in @ measure valueless—an occur rence by no uicans improbable or unheard of- whole estate, soil as well es superstructure, might be taten to tatisty the incumbrance? If such a moztgage, ther, by the trusteer, however bona fide, on their own motion, would be “absolutely void,’ can thie court, by any previons judicial sanction, prevent that consequence which the statute has so positively attached to the act ? Large as its jurisdiction te, both in law and equity, I know of no ‘such power, éven in the Supreme Court, to dispense with the enactments of the legislature, and make that valid which the Jaw-giver has declared ‘shall | be void.’’ Tne parties interested eanction, it | id the act, ard desire that it msy be done. But the law saya in such a trust the parties beneficislly interested cannot ‘assign or in spy manner dispose of their interest. How then can their consenting to, or thom J in, the mortzsge, improve its efficiency? It is void as the act of the trus- tee, and void as the act of the beneficiency, therefore, in this view, be vod c.. ever, another aspect of the case, which possibly may re- liev? the plain of @ part of their difficulty. “Mr. Cruger, should he wish to raise money to improve the roperty. may borrow on the security of a judgment en, and so much of the rents ag shall not be nece sary for his support, will be liable to the claims of the judg- ment creditors. (Statute of Trusta, See 67) Under the circumstances, were it mot for » condition which will exently be considered Ratiroad and Tra |, the court br te all events, wing jurisciction, the decree would be valid—decree | the whole life income, with a very incomsiderahle excap- tiop, to the judyment of creditors. Such a judgment and decree, covering the life interest of the fatber, forti- ficd by © ‘mortgage covering the reversion of the son, would, it seems to me, be ample security for the pro- joan. The son’s interest, whether a dofeasible or an absolute vested remainder, is alienable. No trust is, or in such case could have beer attached to it beyond his winority—two lives having already intervened, his mother’s and his father's, and to iives and a minority being the utmost limit of suspension allowed by law. But although vested and aliensble, is it so absolutoly ? The absolute power of alienation’ may be suspended other means than trusts—it may be suspended as in is instance, by an eventual limitation over. Mr Cra- on, although he hes survived his mother and his own minority, may still die ‘in the Lifetime of his father,’? in which case, to use the language of the dee} ‘upon the death of the said John C. Crager, the father, > theestate is given to the “heirs and ton—seemingly not through him and his represent: tives, ami therefore bound by any mortgage he may exe- cute—butas direct and absilute granteos of the imme. diate parties to the deed of settlement. Nor, fature ¢ontingent limitation, to take effect, if ever,’ at the ex- piration of not more than two designated lives, ‘at the time of making the settlement, own nature the absolute power of ale | given to this clause | reference to credit. lives, but no ; and, consequently, (viewe! oaly in that sspect,) fe not’ probibited by law: ‘Snch a linita ray, although allowable, o:dinerily suspeads tion, alienation. Here, however, as the substi would be the aavigne of young Croger, if pa and his heirs if he did not, (opera estate, cose od tn aeckety enmmrantirant secinent er ees Umitaticn to his heirs. In other words, he the same power cver the estate with the limi‘ation as without. With the limitation the sbsolnte es- tate infeeon his death goes to bis heirs or assigns; without it, if the term assigns ineludes, an it doer, de- vistes by ‘will, the same result precisely will fol low. The son’s estate, therefore, i necess' ope- ration of law, although nominally dofeasible, is, in tea- lity, a feo simple absolute, vested now in interest, to tae effect im possession, on the death of his father. 'So that between the two a perfect mortgage as already explein- ed, can be given, with the single qualificetion that the premises, or rather the estate for life in them held by the trustees, will be esarged, till Mr. Cruger’s death, with such an annuity as the Court, viewing all the cir’ pees, shall deem reasonable tor his and his chil- dren’s support. That, however absurd the proposition in this ins‘ance may seem, he canuot reling or dis- poteot. It is blo by statute, and can only be iberated by the same power. In determining what Portion of the rents and profits by way of annult; should be adjudged reeessary for the support of the life s his trans‘er, an irrevocable appointment of the future would have the same consequences as in the beneficiary, a difficulty arises from the peculiar condi- tion imposed by the rettlement upon his right. The Tents, it provides, shall be to Mr. Cruger during his Ife, be “ also during his life, and fo long #3 he shall live, maintaining, bringing up, and educating the child and'children, and law‘ul issue (msaniog, I suppose, children) of said marriage ins suitable manuer by and out of said rents, issue and profits.” Do such terms in such a ease create 2 logal right in favor of the chlicren and grandchildren? or do they merely n:tach a condition tothe principal grant, a ‘non-compliance with which orks & forfeiture of the intended benefit? If a for- feiture, then the son, on a refusal by the father, might immediately enter, end thus liberate the whole estate, and become sole tenant in fes, not in remainder, but in session, for the object of the trust being in bat case terminated, the estate in the trustecs would by law immediately cears, But if the terms above quoted, instead of importing & mere condition, were intended to, and actually do create « lega\ in the children of the marrisge living at Cruger’s death; and the grandchildrec who may afterwards be bern during Mr. Cruger’s life. a right which, if allowed, could be enforced in a court of equity, another question then arises. Docs the statute permit ihe creation of each in- terests’ A trust, it says, may be croated to receive rents and profits, aud may apply them to the use of, or according to recent jndicial decisions, to pay them to » person daring the life of such person, or for a shozter maps Now, the maintaining, brit iB up and educa- 1g of a person, if not by impli confined to his minority, certainly is to bis life, and thus one branch of the requisition is fuldiled. And although “children ‘and issue’ may be plural, yet that circumstance is no objection, as the statute says that where the sngular number is used, the plural shall equaily be comy rebend: ed in the provision. But gravdchiljren, it wi may be ir persona. Tho statute does not, in terms, confi to persons in belag. Its oniy reetristion in this point is, that ihe persons selected shell be socircumstanced that the trust in thei: favor will not suspend the absolute power of alienation for more than two lives ia beirg. is suspension in the natore of (bings, mest be lim.ted to ono Kfo, and that in being, to wit, the life of Mr. Cruger. If, then, the con dition impesed‘creates atrast in favor of the children and other issae of the maerrisge, confined ie duration, as itis, to one designated life in being, it Would seer to be clearly valid And if valid, ‘he interest is inaliczable—ir alisnable because the law expressly saye it hall be 60, and aio because the re-zons interested, or rome of them, the oe arandchiliren, aro yet to be torn, apd cannot be asceriained un'il the death of Mr. Crvger’s som, unlose he should aurrize hie father, which be may or may not do On « iesurvey of the whole ground then, the conclusion wonld seem to be that the marriage settlement creates in the truetees an estate for the life, at lenrt, of Mr. Ornger, for his support and the support of al! his descendants by his Inte wife, now born, or who may hereafter be born, uring b neithor the ‘estate’ of the trustees, nor the W 08 it ia called, of the beneficiaries can be « = ae in eny manner dispored of,’ except that ‘surplus of such rents and profits beyond the sum that may be neocssary for the education and support of this on ‘or persora) for whose benedt the trust is creat shall will) be Hable in equity to the claims of the creditors of such person (or raons) in pen same manner as other ly which cannot be reached by an ex ecution st law,’’ (1 2. 8. 729,) and thet the only estate in the lend now absolutely and directly alienable is the remainder in fee, ehish on the death ef Mrs. Cruger hecame defeasibly vested in the son now of fall age, and which, therefore, subject to the incumbrance of the Prior quasi Isfe annuity, in no event it would seem ex ceeding half the value, may be effectually mortgaged to any person Willing to make the desired loan. Before Hom. Justice Mitchell, PRACTICE— PLEA DING. Busr vs, Wright —In this case Plaint f both re- plied and demurred {o the defendant’s auswer, and the de- fenéant moved that the plaintiff elec! whether he would atide by hia reply or demurrer, Mitcrixit, J.—ibis motion is founded on the sap 7osi- ticn that one of the pleas is inconsistent with the een , because, es {8 supposed, the demurrer is te the same naiter which the reply covers From the manner in which the answer is exprewsed, it makes a dist'nct ceuse ef defence, that the assignment to tho piaintil was made to Cefraud creditors; and ‘o that the pisintiff de- murs, and to that only, It also makes, ag another ground of defence, that the areignor did not da the claim in wult in good faitd, aud that the ie Yo'd upon the words contained in the as 16 thre Iwo defengen the plaintd replies, ihe pigutis hee, the-efere,-(e0 faz as theee parts of his pleating ere cepcern« d,) selected there separate defence, and demnr red to exe and roplisd to the other. It was api that the reply denied the matter demurred to, bessuse it denied every allegation in the snnwer inconsistent with ths re- ply anddemurzer, The plaintiff meant by tuis to ssnne the matter demurred to, because a demurrer admits the facts to be true thet are dewurredto But that isa very a1 Piguon mede of oxpressing such an idea, and it may with propriety that the allegation ip the answer that the assignment was made to defraud creditors, is inconsistent with the allegation im the revly that the claim was ssrigued in good faith. it he # i ehoores to demur, must, therefore. ess x distinetly what e + he exeepis from the denial in his re- py: and amend his pleacing ascordingly; or he may, if @ choose, extend bis reply to the part demurred to. and the Court at the Cireuit will give him the same advan- tage as if he had demurred to it, As the part dumurred to constituies no defence, no costa are given, By Hon. Judge Merke. Sxe7. $0.—Jokn Boyt v¢ David Mollan.—Motion for re- cciver denied, without eosts, = Mariford Life Insurance Company ve. John Lovejoy, and Othere.—Motion to stay proceedings granted. Supreme Court. Decision by Hon. Jodge Clerke. Serr. 20.—- Wilson and others ageinet Lamont ant Ferguson —The facts in this ease sppesr sufficiently in the opinion of the Court which was rendered by Cumnxr J.—This i¢ an action to set aside an assigoment executed by Ferguson to Lamont in trust for the benetit of creditors, bearing date 20th October, 1951, at Har- Persiield, in Delaware county, where Ferguson was en. gaged in business as a merchant, and where Lamont was employed as a clerk in the law office of S. A. Givins, Feq, Tho plaintifis are judgment creditors of Ferguson in the amount of $561, 06, on a judgment recovered againet him 18th December, 1861, for goods suld to him stout the Sin May, 1851, at six months’ crovit, and also on a judgment recovered egainst him 220 November, 1851, by John C. Tucker for $0 33, which Tucker afterwards, and before the commencement of this action, assigned to the plaintiffs 1 it was uryed on behalf of the plaintiff. sigument is void on its face, becaure it assignes to sell and dispose of the ty asaigned, “upon ev:h tertas and conditions as in bis judgment msy appear best, and most for the interost of the parties concerned.’’ This ia the only ground upon which it can be pretended, with the elightest degree of plausibility, that the instrument ia void on !ts face the de- cision of the Courtof Appeals in Baring vs. Grifin (2 Com. 305), it is undisputed that where the assignes has the ontion, by the exprers language of the isstrumeut, to sell for cash or upon credit, the whole aasignmont is upon its face fraudalent and void. In Shufeldt, Jr. Aberzetby, in the New York Superior Court, the language of the clave wae precisely the same, word for word that to whch objection is taken in the present case. The word ‘‘erodit”’ did not appear in any part of the instrument; but the Judges of that Court, at General Term, held that ‘in meaning there is not the slightest difference.’? ‘‘Yerms and oonditiovs,” they nay, ‘cam enly mean tevins and contitions of payment,'! The high reputation of that Court for ability and learning giver to this, as well as to all its decisions, very ggeat weight; Dut I am constrained to differ from tie learned Judges in the construction which they hare T cannot believe that if noses- tarily imports a discretion to the assignee to soll enc edi. The ferilar principle. that in the interpre- tation of instruments, tbe law will nsv-r by implication attach an unlawful mearing, or receive an unlawful trust, forbids such a construction. agree with Jud, Mason, of this court im Tyler ve. Brdsall, that ‘tho court will never imply a power to sell on credit from spy loore, ambiguous expression, where there is rea- tonable doudt 9s to its meaning.” To vitiate the in- strument, it must be an express power to sell on credit. It will be intended that te power was coaferred to sell only on legal terms and couditfons—for cash, and not on credit, which would be illegal. But’ it is said that in instruments containing this clause, if you take away the power to sell on crodit, no dis- crétion remains ; since there san be no exercise of a discretion as to the terms and conditions of a sale, when it is for cash, and cash alone, that the sale can be madc—that ie, the clause admi‘s of no other possible construction but a discretion to sell on credit; ani in a sale of properiy, it is thus assumed, there can be no terms and no conditions, except those which have a But it cannot be that credit iv the only circumstance connecied with the discharge of the duties of an essignee in the disposition of the property, importing the idea of terms and conditions. It may expedient that it should be sold either in gross or in parcels, or both ; that it should be taken away by the purchaser at once, or be allowed to remain on the pre mises fcr a reasonable time to suit his convenience; or that a Certain per centage of the purchase money should be deposited immediately after the sale; or that the whole may be paid immediately on delivery. Besides. the words ‘terms and conditions,” when regarded in connection with other pee of the instrument, may, without any violer ce to the language, be taken to mean the manner in which the trust in this respect was to be performed; for example, that the sale mey be privats or public, in ‘the store or elsewhere, including innume- rab'e details in the proceeding, which must from neces- sity be left to the dissretion of theassignee. But when ‘we Gnd that, in addition to. the words quoted, and as a continuation of the sentence, the assignee is directed “to convert the same into cssb,” I think to imply an intention to give the assignee an option to sell on cre- dit would be actually reve-sing the rule forbidding us to deduce an illegal intention from an instrument, when from its whole language and tenor it is suscept. ibie of w legai meaning. Ilegality shall never be pre- sumed. For these reasons, I consider this assignment valid on its face. 2 The next questionto be considered is whether the extrinsic facia rhow ‘that the assignment was mado in bad faith, and with an intent to defraud creditors. or this purpore, we are not confined to facts previous to or simultaneous with the execution of the assigment; but we may take subsequent fasts into consideration, when they are capable of explaining the motives or intent actuating the parties at the tims of tne transaction. Doubtiess, no subsequent fllegal or fraudulent scts of the assiguor, or assignee, can invalidate an assignment valid in its inception; but, where the questicn is still unsettled, whether the whole transaction from the com- mencement was fraudulent, subsequent, conjointly with previous and simultaneous f: are well calculated to show the intent, and prove the validity or iova- idity of the sssignment. The defendant Ferguson = ome the goods for which the plaintiffs ob- aine judgment Spit bim on the eighth of May, 1851, at a creoit of six months, making the Dill Gue om the Sth of November. At the time he purchased he forey he told Simpsop, the plaintifa’ clerk, who made the sale, “that he was ‘ing money, and was doi ing better at Barpersfield than he had been st Wentkill,’’ and it was in consequence of these represen tations that the plaintiffs soli him the goods. how does this sgree with the fact proved in the caso, ond urged by the defendants’ counsel himself, that Furguson had been embarrassed for two years before the assign- ment, and constantly press@d for money? Now, when ‘we take there circumstances, and this palpable mierep- resentation, in connection with the time at which tho assignment’ was made—Oct. 28, 1861—only a few cayn before the bill of the plaintifis became due, I think it may well be regarded as throwing some light on the intent inducing the assignment. In addition to this we find that the assignment was made to a young man, twenty-two years of age, o law student, a few rods from Ferguson’s store, with little or no property or pecuntsry responsibility; that there was only a mere formal change of possession; that Furgueon continued to attend tho store, to make rales, in some inetances on crodit, and that he was employed to it in the general manage: ment of affairs, and collection of debts; that the gools continued to be led, while there was no actual change in the get ot the business. His ro. mark, too, soon after the assignment, to sternough, an acquaintance end customer, should not be fc ten. ‘The satter asked him, on seeing that the store had more gceds than usual, if he had been filling up; he said “No; J have fe 1” (I then asked bim, if Belli ger, acrediter, was crowding him!” He said no, “that it was matter of my own ing up ; Ido not wean to work ten or twelve years for nothing.” At last the co: were sold at auction, about ten or twelve weeks after the ¢xecution of the assignment—Fergu- son in the meantime, by his counsel, isterposing va- rieur delays, by adjournment and apyeal to Tucker and to the plaintiffs, in their efforts to obtain jadzmenta sinet hima for elaims, which he does not protend to dispute, or that he had ever any eason to dispute. As- sigt ments by debtors are not regarded with indulgence by the law. Experience and the requirements of « great commercial community show that they should Tather be restricted than ercouroged. Bu time that no further Jatitude shonld be given to enable debt ors to make an crequal cispositios of their assets among their crevitors. The law ceriainly gives a rigut of preferener, but 2 wholesome policy demands that ‘this right should be watched with #triet vigilance. and ite exerciee restricted to the most narrow limits. Confidence ss the wain pillar of commerce, and the conrta should be excecdingly careful not to sanction apy practice calcula‘ed to impair it. The laxity which viforinpately too mach prevaila in commercial and finenciel circles, and which bas recently produced suca ruinous eflecta, aod still threatens to produce more, sbould te met with the determined opposition of our ecurts; and it is with great satisfaction that I have ob. nerved the recent tendapey of judicial decisions upon this subject. In all these voluntsry astiguments there must appear an honest intention, free from all suspicion; there must be no attempt to ccerce creditors—nothing reserved for the benefit of the debtor; there mast be no intermeddling by the latter with the property; there must be an actual, bona fide, continaed change of posses tien, and the asreta must be converted into cash without delay. These has been a sufiicient departure from these principles in the present case to warrant me in pro- Rounelpg the aesignment void, at least as sgainst the plaintiffs. Judgment for plaintiffs, with costs—a recsiv- er to be appointed; the plaintiffs to have s Priority to the smovnt of their claim, and the assignee, Lamout, te deliver over under osth. Superior Court—Speeial Term. Before Hon. Judge Bosworth. ACTION AGAINST AN INSURANCE COMPANY. Serr, 22.—Lamoreux vs. the Adlantic Mutual Insuronce Company —Thie in a motion to compel the plaintiff to make his complaint more definite and certain. The com- plaint seems to be framed on the theory that the plaintiff is entitled to have the policy reformed, and that it may be necestary to have a reformation decreed, to enable ‘h'm to recover for the loss that has occurred. The cora- plaint, among other things, ‘‘prays that, if the same bo necessary, aid policy may be reformed in such mannor as fully and clearly to express the intention and agres- went of the parties,” &c, The complaint concludes by éemanding judy ment egainst the defendants for tke euro of $7,(00 (the smount insured), with interest. Thi moticn is for em order to compel the plaintiff to co amend that the complaint shall, amoug other thivgs, unoondi | gin ire plaint:ff may amend bis complaint within twenty himself entitled,” sec. 142, eub.3. The nature of Tievolief demanded in many casse determines the mode of trial, Wf the prayer is for a jodgment merety, soa only for the payment of money, the action must ve vied | by a jury, see. 253. Lf other relief be prayed, the cause is to be tiga by the Court, umlees the Court orders othe: wise, see. 264. if, in an action on contrac prayer is simply fora judgment for a sam named, the language of the « de, if the action is ‘for ¥ covery of money,” the clerk, in case no epswer is put in, mages, 6c 246, sub. 1. if it isnot covery of money, but other re! be giver to enable # plaictitf cover, judgment cannot be given without an application to the Court, id, sub. 2. The summons in the one case be different from that in the other, sec. 128. If action is for the recovery of money only, if intiff recovers $50, (if it be op ‘contract,) rection 804, sub. 4. Bat if he # : ‘ formerly could be brought only in Chancery, the costs are in the discretion of the Court. Section’ 806. Not only the impe: quirements of the Code, licy of sli the provisions of It, referred to, deioand that oy specific reliet eonght should be stated distinctly aa icy is to by th directly. be litigated, a defend, complaint. plaintiff to that relief, a defendant may desire to demar toso much of the comylaint us contains that cause of action. Section 145. Unless the reforming of the policy is sought, aud a judgment :eforming it is demanded, sil allegations in the complaint hsving no relation to any other point should be omitted. ihis complaint does not state What words were omitted to be wri of the policy, nor what precise reformation is sought Ifthe question of reformifg the p t should be advised of it days, as be way be advised If he does not so amend the words “that if the same be necessary,’ in ta¢ 14th fotio will be stricken out of the complaint, and defend- ‘ant may Laye ten days to answer or demur, after the complaint has been amented. Dvex and Hormmax, J. J., being consulted, concurred. Before Hon Juége Hoffman. Spr. 25 —Molley vs. Bassett and others —Horraax J.— The late fim of Bassett, Aborn & Motley was diseoly ed on 23d of Decemoer, 1863, and thereupon articles of dissolution were executed between the members, under which the possession and control of the assets of the firm were transferred to the partuers, Bassett & Aborn, on the etipulations and agreements cov’ained in the instrument, Bassett & Aborn formed new frm and continued the business upon tho bais in part of the old stock, In August, 1854, they faile made an a tignment of all their property and effects, including what remained of the old stock and assets, to the de fendant Thomas. and for the benedt in part at least of their own separate creditors. For the due consideration of ove of the questions, it is aseumed that the assiga- ment was for the exclnsive use of such creditor. The necessity of a apeody decision for the intersst of all the parties, prevents my entering into an elaborate argu- ment to sustain my views [content myseif with stat- ing the vesults o& my ex: mination in the following pro positions: — 1, ‘Ihe tranafer of the property and assets of the for- mer firm was absolute, vesting the entiro possession and whole right of disposition in Bassett & Aborn. 2. There was @ personal cngagement of Bassett & | Aborn to pay the debte of the fia and save Motley barm- legs. There was also a full covenant on their part that | they would faithfully appropriate the proporty assigued | to the pay ment of the debts of the firm | 8. Motley, if not the partnership croditor have compelled this appropriation, and returned, through un officer of the court, passeasion and control of the property, #0 long as it remaived in the hands of Baa- sett &Aborn, upon # proven intention to mkapply or pervert it. : 4. But the property is now in the hands of an assignee of the second firm, and had placed there for the bezetit, it is assumed, of the ceparate creditors of that arm, and in my view the questions are to be considered en tirely as between the conflicting claims of two classes of erecitors. In substance it must be so, and I disregard the technicality which on one side treats the partnership creditors az without rights or standing, but through the retizing partner, and on the other, considers credito: as wholly depending upon the rights of the and of ihe assignee as their agent merely. brought then to the discuseion anc decision of the ques- tions as between the real conilicting claimants upon the fan Upon this important subject, it seems to be deciled that the claim of a bona jide purchaser of partnership property will bo protecteil against the equitable Lien of parinership creditora asserted through a retiring part ner, however absolute: and explicit the appropriation may bave been made By a bona fide purchaser is meant one who advances moncy or credit at the time, Again, it is probably also settled, that if s creditor of the part: ner who has taken the property under such an aseamp tion to pay debta, obtains & judpment. issues execution, nd files his bill thereupon. he obtains a lien which will supersede the equitable claim of the joint creditors upon such property, But where the question ariees simply and substantially between the creditora of the partner. sbip and the creditors of the partner to whom the pro perty has been assigned, and the property may be specifically traced, in my opinion the paramount ori- ginal equity of the former is not superseied by the actual possession of the property for the use of the latter by their agent, treating an assignee as such, 1 o not mean to say that this point is authoritative ly settled, and the argument is very pressing which rests upon the presumption of a credit given upon the ostensible § porcession property without a of an equitable claim upon them. Witkout, therefore, having a fixed, undoudting opinion, wy previous examination and present reflection upos the question leads to the conclusion tha: the Jaw is in favor of partnership creditors, It is generally stated that the claim of the partnership creditors is to be worked out through the lien of the partaer: that they have strictly themselves no lien. the practical effect ar; to bo that the creditors cannot sue for the funds t leant cannot auewithout the partner. Butin toe cate below cited from MeLean’s Reports, Jastice McLevn tustained 2 bill by partuerabip creditors to forec!oue a morigoge given by continuing ‘tner to the retiriog one, to recure his engagement to pay the debts of the firm. The cases to which I have referred sre:—Devan te. Fowler, 2 Paige, 400; Kirby's. Shoemaker, 3 Barbour, Ch. Rep., 46; Ketchum vs, Durkee, 1 Hoffman's Cu. Rep., 640, and revereed—1 Barbour, C. R , 483; Greenwood os. Shell. § Rartour's Bap, C Rep., 600; phi Vail, Har rington’s Ch. Rep., 841; Sedam ve. Williams, 4 MeLean’e kep,, 51; Hood, asignee of Richio, vs. Spencer, ibid, 168; Robb vs.'Stevens, Clarke's Rep., 191; Rice vs, Parnum, Vermont, 429; Gardner ts. ‘Trustees of Canajoharie, 2 Barbour Sup, C. Rep , 625; Wilder vs. Chapman, 4 bd wards, 669, ‘ 1. But snother point rematos to ke disposed of. It is stated in the answer that the amount of the cebts of the firm of Bassett, Aborn & Motley, paid by tho new firm, excceds the whole amount realizes from the assets of the Gret frm, and the faix value of what remaios of such asects; and it is insisted that such remaining assets bay? thus been made the property of the last firm, or at least have been ro far releaned from any equitable claim o: the old pertnership creditors as to give @ better title to the creditors of the rewfirm This is a grave qi Al though the covenant of Besrett and Adorn to pay the debis Was absolute, no watter what the property realized, ct Motely would only be a crediter of theirs for what ¢ should pay of avy deficiency. This would not affect the point ruggested. The case is not now in a situation to have this question settled. The fact is not admitted. Fut it is entitied to mueh weight in cousideriog wheter the assignee sppointed by the frm sould be displaced. ‘The cause is now in such a poitien as that if it were on the calendar st special term it would be referred, and I heve <rafted the heads of an order which with proper modifications will as speedily as possible bring the case to a close If the parties consent that it be treated, as if the cause was on the calendar and brought on at Special Term, it can be entered at once, ot the de lay will be sLort by putting it down for the October if necessary, « & term, for which, ial order may be oe ‘The ordes directed to be entered was in effect as (Lows :— 1, That the ceterdant, Thomas, be appointed re:eiv- ex, on giving the requisite seourity, %. That upon such security belog given, the injune- tion her: ven be modified so far as to permit ‘Thomas as receiver, ne age to Gispose of all the proyerty now in his hands, and covered by the assign- ment madé to him on the eggiher | of August, 1854, and collect the proceeds thereof, #0 to collect all debts which passed to him by such assignment, he keeping separate accounts «f the proceeds, #0 to show the mount realized from that part of the property or as- sets, aa belcnged to the firm of Bassett, Aborn & Motley, and that suck defendant retain all the eds of the property assigned to him, until the f order of the court, 3. And that the cause be referred, for the purpose of ascertaining th answers to certain specified quea- tions comsained ia 1] der. Superior Court—General Term. Present, all the Justices SFr, 80.—It is ordered that the next November t.ial term thereof be exter ded and continued four weeks from the Ist Monday of that month lis ulso ordered that two rpeciol terme for the trial ct censes by jure in ad- dition to thore already cputiene to he hel# in exch of ibe months of October, Novewber and December next, to commence on the 34 Monday in each month, and to be ecuiinues for two weeks thereafter. DFCISIONS. Henry Curstans agt. John Ritier Appeal dismissed $10 costs. Venry J Scoman agt. Daniel Low.—Applicution de uicd with $20 costs, , Marine Court. ACTION FOR SLLEGED FALSE IMPRISONMENT. Hofore Hon. Judge Phillips. Srrt, 25 — Neville vs, Wall.—-This action ia brought by Plaintiff against the cefendant to recover damages for alleged false imprisonment, charged to have been com. mitted in the cily of Williamsburg The defendan, moves to dirmiss the complaint upon an affidavit settiog up that all the acts complained of by the plaintiff, if commitied by the defendant, were done by himia por suapce of the duties of his office as Mayor of tbe city of Williamsburg. That the plaintif being charged with a Violation of the city ordinauces, he (the defendant) is. sued his warrant for the plaintifi’s arrest, and finally committed him to the county jail, and that both plaintiff and defendant are residents of Willismaburg. Hection 124 of the Code ides that actions iast a public efiicer for an act is office mart jone by him in virtue of be tried in the county where the cause, or some part thereof, arcse. The intiff resists the motion for the Pt ed Be Eee ae the eae re aprrong of the parties having cece pasted upon, is res adju- dicata, 2, Toat tho allegations Rentained if the affidavit, that the acts compisined of were done ia virtue of the defendant's office, isa question of fret to be passed on bya jury. and cannot be tried by the court on affidavite, Phillips raid—The position assume i by the plain. Ul in bis first point is undoubtedly correct. “On the re- turn of the eummons the objection was taken by the de- fendant, ‘het beth of the parties to this a» renicente, and sbat therefore this court hae tien ei ber of the parties or the section. This objection war overroled by His Moror Justice KeCarthy, and that tionally pray for # reformatian of the polisy, or wholly | ruling carnot be disturbed by me, and can only be re omit to ask any evch celief. views by om appeal fo the general teros. As to the Horworim, J —1Le code requires 2 comjloiut to com: | cecond yeint raieed by the plaintif, at the time of the ar vein" depend of the relief, to which the plain sup, gumen\1 war strongly inclined to the beligl that the d | person the line of their route? th! — z | fondant was regular {fo his pre-ext wotion in “ jon of jurivéiction, but afer mature fore ay arcived at # different conclusion. When sdefend ms lomusity for spy act committe) by bimig 1 his public office, that immuuity must be ple forma & part of the issue ia the cause. The plain cateni# that im the cowmission of the acts com- ed of, the defendant, even if pe claimed to act as a public officer, acted without autrority of law, aud there- fore ie incividually Hable. Whole [ am not prepared to go this length, till I can well conceive how this poimt may well .¢ contested at t-etral Did the defendant act in virtue of his office? There cam be no question that at any stage of the trial chen the fact is made to appear that such was the ces the cause must be dis- missed; but to try this question upoa affidarite ‘on mere inotion, would be to drorive tun plaintiff of hie right to traverse the question of immunity eet op by the defendant, avd also, in case of 4 derision adverse to the if, prevent bis obtaining ew of my Cetixiom the appell ; the de ud papers used om motion forming bo part of © "d The defendant put in the sffidavit as bir answer to the covplaint, this motion is denied, rin $5 costs wabde the event This order applies to all the actions against the de- fendant. PECISION AS TO THE LIABILITY OF RAILROAD COM- PANIES AS COMMON CARKIERS BEYOND THE LINE OF THER ROUTE. . Anton Erne vs. The New York and Evie Ratiread Com- pany —This action is brought t» recover the valve of a box or trunk containing caguerreotype sppiratus aad clothing, delivered to pm to be transported, as us allege o Cincinnati. The trunk was tabep to the company pot at the foot of Duane street, and the following ticket given to the person whe loft ft, veing & copy of the address on the box — ‘Anton Erne, Cinciausti, Ono, exre of Mr. Kies, 119 Sycamore street, ove cheat luggage. “atsy 6, 1804. BROWN.” The Vefendants produced their taily clerk at Dunkirk, who proved that on the 12th of Muy last a box bearing the above mark was received by ben from the core at Dan- Dirk, and by Lita _— the ssme dag by the boat for Cleveland, Obio, that being the ns al route to Cineiomati. The plantiff claims that the ceteodauts, as common car- riers, uncer took to deliver the voxin ques\ion at Clocin- nati, #s per direction, and that thoy are liable for their failure w Coing s0 Jucge Phiilips—The defendavts are an incorperatel company for the transportation of freight and paseea- gere fro New York to Duukk ani to the extent of their line (hey are to be deemed -ommon carriers. !n or. der to make them lable beyond the ‘etzaivus of their lime ae conoamon cactiers, Ay Express agreement to carry must berhown. ‘this the plaintiif covteads is to be inferred irom the reeeipt given by th» comeany’sagentat New York. Whena box of goods is celvered to 2 common carrier, marked in @ partion ar maoner, without any directions except such as say de inferred from the warks themselves, the carrier base right to presume that the conslenee of the good. in ends the carrier shall transport and dispose of them iv the usual wey; end if the owner of the goods neglect» to make the necem inquirie? as to the usage or custom of the business, or to give direction as to the dieposal of the goo’s, itis hin own fault, and the loss, ifany after the carrier hae per- formed his duty according to the ordinary course ef his | trade and business, should fall uvom such owner, and not upon the common carrier (Van santvoord vs. St. Joln, 6 Hill, 158.) ‘The evicence tu this case shews that the box, in the ordinary course, wes recived st Dun- kirk, was checked upon’ the way bill by the tally clerk, and in purenance of their usual custom placed in the Voat for Cleveland en route for Cincinnati. So far ax | common corriers, the detendants seem to have perform - ed their duty. Ts there, then, any agreement shown by which the defendants contracted to transport the goods ‘There certaialy is no- ing in the language of the receist to make the com- pany specially liable, further than they would have teem fnotuch receipt had been given; and the delivery of the bex by the tally clerk on board he steamer at Cleve- land, marked in that manne-, in clearly proved. It | simple acknowledgment by the clerk or agent at the de- pot that he had received a box of luggage with « parti- cular mark thereon, which, so far as giving the receipt Was concerned, was @ mere kof identity. Saxtvoord vs. St. John, 6 Hill, 161.) ‘Ihe rule which now seems to be eetablisbed ts, that common car- tiers are not liable for the safety of goods beyond the route on which they axe carriers, and I therefore cam only treat the ¢efendants as forwarders beyond Dunkirk. (Ackley va. Kelley, 8 Cowen, 223.) Judgment for de- fendants with costs Before Hon. Judge Thompson «nd a Jury. ACTION FOR FALSE IMPRISONMENT. Surr. 26.—David Jacobs vs. James Leverson —Action for asrault and falee imprisonméut in having the plaintiff taken into custody and brought bef«re one of tt oo justices, ona charge of stealing a watch from Mr Eovere rons store. ‘The plaintiff, it appears, regotiated with the defendant for « watch for $75, and for whish be of- fered $50. A dispute arose, aud the storekeeser gave the customer into custody upon a charge of attempting tograba watch. Verdict for p ainwiff $20, which carries alike smount of costs. Common Picas—Genesal Term, Present—Judger Ingraham, Woodruff, and Daly. “ DECISIONS. Serr. 80.—2he Merchants’ Bank va. Mills ¢ al.—tn~ Crum, J.—An omission to file seourity by a foreika corporation before commeneing sn actton is not sufficieat cause to set aside a judgment obtainad by default. The @efendant, in neglecting to move before juigmen’, is to be deemed as waiving his right to security. The orler appealed from affirmed, without costs, withou preju dice to a renewa! of the motion, &c. Eori cs. Hoger —I8GRAnam, J —A service of notive of hte on an attorney, where the party resides io the city, ie insufficient.’ Proof of nou-residence ir not mede cnt by an affidavit that te party does net reride in the city to the best of bis rnowledge and belief. Where a notice of appeal was handed to an attorney, ho nformed the appellant that the party resiied in tue clty at a specified place, and thereupoa he took vack toa notice, and raid be would go and bunt bim up, it wad held net to be # good service on the attorney. Ihe paver should have been left with him. Appeal dismissed, with ten dollars costs. hotentaum vs. Gunter. —Incranam, J —A frauduleat re: prerenta’ion as tothe amount paid for the rent of @ house wil! not avoid a contrast for hiring part of the premires at a specific rent. When a wi'e is designated by the husband as his agent for the mavagemen! of bis property during his absenos, s¢missions and promires to pay bills in regard to the premives are binding. Jucg- ment recuced to $107 36 Hirshfield vs. Landman.—Woornrs, 3 —An attorney who assumes to appear for a party in a justice’s court, wust, if required, prove his autnority. A parol autho- rization is sufficient, and the attorney is himself 2 :om- yetent witness to prove it. The time to require such proof of authority is upon the appearance be.ore joining issue an! going to tris). Judgment affirmed with costs. Wilson rs, Slater.—IxGRranam. J —Where ap assiga- nal property is endorsed upon ap agree- g to it, and referred to the property as men- tioned and decribed in the original instrument, held tha: on proof of th oye t he original agreement Was amissible in @ though between other par- Indgment reversed. | Judgmeat erdere3 for plain- for $108 88 with costy. Trust vs. Delaplaine ~Isaranam, J.—Where an sue- tioneer in selling personal property bids for it and there- by enhances the price to the purchaser, he may, on dis- covering such under-bidding, refuss to complete the purchase. This Court, on appeal is limited to the re- turn for the facts occurring cn the trial, and cannot look into the affidavit, except whea specially provided for by law. gment sfirmed with costs. Holly ve. Gocling —Judgment effirmed with costs. Manning vs. Humphreys —Where a person purchases various articles at separate prices aud pays for them, if one of the articles sent to Lim is difereat from that pu chased, he may return such as is defective and recover the money paid, and need not return ali the other arti- cles purchased at the sametime. Judgment affirmed with corte. Schlessinger ve. Bushnell. —Juigment affirmed with ts conte Manning vs. Leni.—Judgment reversed with costs, United States District Court. Before Hon. Judge Betts and a Jury. Serr. 26.—The United States vs Thre: Packages, contain table forks, table stecls, fork castings, and rwhitenis qrindstonia —This uit is’ Gconeht br’ the quvememen jor forfeliure of the goods for under valuation. They were seized by the Collector on the 20th March last, aod are clsimed by Joseph . Mr. Joachimeson ap~ peared for the United tates. The in’ormation contalne the veual counts, generally that the said goods were represented in the invorce at # certain value, which war fuleely represented to amount to 4 less eum of money than the true and astual vslue. The answer of the claimant contains a general dental of the facts stated in tho information. The goo s wore imported from Fnglard per ship Princeton, and fnvoiced as having cost in rbefiield £28 88.24. They were afcerwards appraiced by Mr. Camptell at the public store, and the izyoice value was raised by him 80 per cent—miaking the value $255, including 6 per cont commisrion : charges, insiesd cf $199 17, as stated in the en- try Por the defence, a broter of Mr. Sanderson was examined by Mr. McCullough, aud@ depoved that the goods come from bis facher, who isa wanufacturer of thore goon in Sheffield, Frgland; witness was in Eng- Jaod at the time the pone were forwarde! to bis brother in this city (looks at the forks); those good« could bave been bought {n England at that time at » lower rate than they sre marked; witness has purchased similar articles, about the same time, at thore prices; {he prices now Vary to 20 or 49 par cent; the couse of that is that iron Las advanced more than one hundred gry and the price of labor, too, is advanced; this jescription of goods was an old established style. | Ver- Cist for the United States, Kefore Hon, Judge Betts. Serr. 30 pPleas of Not Guilty—The District Attoroey dig A as prisoners indicted should be put for- 0 ple Warren Judkins, indicted for counterfeiting coin, wad then placed at the bar, and enteroda plea of not guilty, and was remanded for trial. James McDenald and others, indicted for revolt, plead- od not guilty, aud were remanded. THY ALLEGED CHARGE OF SLAV2 TRAFFIC: OF INDICTMENT FOUSD. The Grand Jury came into court with a true bill of indictment in the care of the United States against J: Smith, captain of the brig Julia Moulton, with om oers im slave traffich in, ae ae r act of Congress prisoner was put forward . Mr. B. F’. Dunning, who appeared an counsel for the Pelnones, ‘was about to enter the ples of not guilty, when— Judge Betis said that as this was a capital offence, it oid not ocme within the jurisdiction of the bistrict Court, #10 { ehovld therefore be remitted for (ria! to the United States Cirevit Court. . Mr. Dur ving aeked for a copy of the Lidietment and @ Ust of the witoerses. ‘The Judge said that such rhould be furnished the de. fneens we days before the trial. The prisoner was then remanded. The Grand Jury also rendered Mills egainst Charles Wel mer. charged with ¢ vunterfeiting gold dollars; Peter W. Gandiner, ehorged with an ages ith a dange-ous eayon: Jessel. baggetall, char fn aesault with ® Cangerous weapon; Samuel Hei or smnngghuy 4 agharich Fewetwer, smuggling. ILLS