before making the investment? We think not. If the ject rest upon the principle that a person who frauduplaintiff had relied upon a statement by one of the offi- lently places in circulation the negotiable instrument cers that a resolution had been passed, authorizing the of another, whether made by him or by his apparent issue of the notes, he would have assumed, necessarily, authority, and thereby renders him liable to pay the the risk of the statement being true. If true it would same to a bona fide purchaser, is guilty of a tort, and, protect him, otherwise not. He stands in no different in the absence of special circumstances diminishing its position because he did not first inquire. In either value, is presumptively liable to the injured party for event he would assume only the risk of proving the au- the face value thereof. As the case under considerathorization by resolution. This position has support tion fairly comes within this principle, it should be in the reasoning of Judge Andrews, in Cowing v. Alt-governed by it. The essential injury, common to all ma:, 71 N. Y. 442, and Williams v. Mitchell, 17 Mass. cases of this character, is the fraudulent imposition of 101. Second Division, April 15, 1890. Wilson v. Metro- | liability. Hence there should be a common remedy, politan Ry. Co. Opinion by Parker, J. Affirming 14❘ whether it is called an action in conversion, or in the Daly, 171. nature of conversion, or a special action on the case. These views lead to a reversal of the judgment as to all of the defendants who voted for the resolution authorizing the president of the company to issue and negotiate its notes for the purpose of paying him a salary to which he was not entitled. (2) Under such circumstances the action cannot be maintained against directors who voted to pay the salary, but did not vote for the issue and negotiation of the notes. Second Division, April 15, 1890. Metropolitan Ry. Co. v. Kneeland. Opinion by Vann, J. Modifying 45 Hun, 590. CORPORATION-STOCKHOLDERS' LIABILITY.-In an action by the creditor of a manufacturing corporation to enforce the liability of a stockholder for the amount unpaid on his stock, under Laws of New York, 1848, chapter 40, section 10, the exclusion of evidence offered by defendant to prove the sale and transfer of her stock before the indebtedness of the company accrued is prejudicial error, for, if established, the transfer would have been a complete defense to the action. A transfer of stock, made in good faith, and at a time when the corporation is a going and solvent concern, and which is entered upon the books, would certainly relieve the transferrer from all of the responsibilities which attached to him as a stockholder. To deny to the defendant the leave to prove these facts was to disregard the rules governing the liabilities of stockholders. All the authorities are to the effect, as is the plain reading of the language of the act, that the owners of corporate stock divest themselves of the liabilities incident to their relation to the corporation when they have actually transferred their stock in the manner provided by the law. Adderly v. Storm, 6 Hill, 624; Rosevelt v. Brown, 11 N. Y. 148; Johnson v. Underhill, 52 id. 203; Cutting v. Damerel, 88 id. 410; Laws of 1848, chap. 40, § 25. April 15, 1890. Tucker v. Gilman. Opinion per Curiam. Affirming 45 Hun, 193. CORPORATION-NEGOTIABLE PAPER-LIABILITY OF DIRECTORS.-(1) The directors of a railway company voted without authority to pay their president a salary, and at a subsequent meeting assumed to authorize him to issue and negotiate the company's notes in payment thereof. Some of these notes passed into the hands of bona fide purchasers, and thereupon the company brought suit against its president and directors for the value of the notes issued. Held, that because of the injury done by the apparent authority to negotiate, and thus to convert its void notes into valid obligations, and by the actual negotiation of some of them, the company can maintain an action against the directors who voted to confer the power, without any allegation of payment of the notes or of actual loss. Those who voted for the resolution which in form authorized one of their number to issue and negotiate notes of the plaintiff, assumed to authorize, and by authorizing, caused some of the notes in question to be issued and negotiated. They had no power, express or implied, to pass that resolution, or its predecessor which provided a salary for the president. They could not thus give away the property of the corporation. They could not bind the stockholders by voting to appropriate the assets of the company to an illegal purpose. Butts v. Wood, 37 N. Y. 317; Coleman v. Railroad Co., 38 id. 201; Ogden v. Murray, 39 id. 202; Kelsey v. Sargent, 40 Hun, 150; Gravel Road Co. v. Branegan, 40 Ind. 361; Holder v. Railroad Co., 71 Ill. 106 Association v. Stonemetz, 29 Penn. St. 534; Kilpatrick v. Bridge Co., 49 id. 118. Their action, as admitted on the record, was a violation of their duty as directors, a breach of trust, and a fraud upon the plaintiff. The result of their action was to cause notes to be made, purporting to be valid obligations of the plaintiff, although in fact void. While not the notes of the company, they appeared to be such, as they were issued by those having apparent authority. If nothing further had been done however the wrong would doubless have been injuria absque damno; but the defendants who adopted the second resolution thereby authorized the negotiation of the notes, and some of them were negotiated accordingly, and reached the hands of bona fide holders for value. These notes, as is here admitted, the plaintiff has become liable to pay in consequence of the fraudulent conduct of those defendants. Thus the dead pieces of paper were, to this extent, given life, and converted into contracts binding upon the company without its consent. In what respect do these wrongful acts differ from those which, in the cases cited, were held to authorize an action for conversion, or an action in the nature of conversion? Do they differ in the character of the injury inflicted or loss sustained? Is there not in each the same presumption of damage springing against from a liability wrongfully imposed? Were not all of these actions founded upon the fact that the maker, real or apparent, of a negotiable instrument, had, through the wrongful acts of another become chargeable, so that he could be compelled to pay such instrument, which would not have ripened into a valid obligation against him but for such wrongful act? We think that the cases relating to this sub CORPORATIONS-DIRECTORS-SERVICE OF PROCESS.(1) Under the New York General Railroad Act of 1850, section 5, which provides that no one shall be a director of a railroad company unless he is a stockholder, a director who sells all his stock and is thereafter superseded at a special stockholders' meeting held pursuant to notice, ceases to be a director either de jure or de facto, though the by-laws provide that directors shall be elected at the regular annual meeting; and a judgment by default against the company in pursuance of service of process on him is a nullity. (2) A provision in a railroad company's articles of association, that the total length of the road and its branches" shall be thirty-five miles, is not evidence that its main route exceeds fifteen miles; and, in the absence of other proof, a reduction of the directors from thirteen to seven in number, under Laws of New York, 1864, chapter 582, section 3. authorizing such action by " any railroad company whose main route does not exceed fifteen miles," will be presumed to be regular. April 15, 1890. Beardsley v. Johnson. Opinion by Earl, J. Affirming 49 Hun, 607. and thirteen perches of land, exclusive of one acre, one rood, and thirty-two perches, belonging to the railroad; being the same piece of land devised," etc. It also provided for a reversion of the land occupied by the railroad to the grantees when it should remove its tracks or cease to operate its road laid upon the strip. Held, that it was the intention of the grantor to pass any title which he might have to the railroad land. Second Division, April 22, 1890. Clute v. New York Cent. & H. R. R. Co. Opinion by Potter, J. Affirming 42 Hun, 654. EJECTMENT-STATUTE OF FRAUDS-EVIDENCE-ANCIENT DOCUMENTS.-(1) Huntington was organized by settlers from Connecticut in the seventeenth century, and the title to the lands was held by trustees for the common benefit. From time to time, by vote of the inhabitants, lands were allotted to be held in severalty, and the allotment entered on the town records. Plaintiff claimed by chain of title from one to whom the lands in question were thus set off in 1793. The statute of frauds (Laws of 1787, chap. 44, § 9) provided that all estates not created in writing, signed by the parties, etc., should have the force of estates at will only. Held, that such allotment was not a compliance with the requirement of the statute. (2) The claim of title in the person thus taking cannot be supported upon the theory that he was one of the proprietors, and received title as by partition, when there was no evidence that he was a proprietor or even a freeman of the town, and the proceeding was not in accordance with the statute then regulating partitions. (3) Where there was no evidence that such person ever entered on, or claimed to own, the lands, or that any other person in plaintiff's chain of title was ever in possession, it was error to direct a verdict in his favor. (4) Certain documents, dated about a century ago, and purporting to be the records of a town, were offered in evidence as such. Several witnesses testified that they were its records. None testified to the contrary, and the evidence as to their custodians, as far back as witnesses could remember, raised no suspicion as to their genuineness. Held, that they were properly admitted in evidence as the town records. Tolman v. Emerson, 4 Pick. 160; Goodwiu r. Jack, 62 Me. 416; Proprietors v. Rogers, 1 Mass. 159; Rust v. Boston Mill Corp., 6 Pick. 158, 165; King v. Little, 1 Cush. 436, 440; Whart Ev., §§ 198, 643. Second Division, April 15, 1890. Sanger v. Merritt. Opinion by Follett, C. J. Reversing 35 Hun, 669. INJUNCTION-ILLEGAL TAXATION-VOID WARRANT. -In an action to restrain the collection of a tax on personal property, the complaint alleged that the assessment was out of due proportion and too large in its valuation, and that it was null and void, because the parties who assumed to make it were not assessors either de jure or de facto. Held, that an injunction would not lie, there being no ground for equitable interference, as certiorari afforded an adequate remedy for the first wrong, and the remedy for the other wrong was an action against the collector for seizing property upon a warrant void on its face. April 22, 1890. Delaware & H. Canal Co. v. Atkins. Opinion by Finch, J. Affirming 1 N. Y. Supp. 80. LIFE INSURANCE AGENTS-COMMISSIONS.-A life insurance company employed an agent for one year, and agreed to pay him a certain amount monthly, and "regular renewal commissions on the policies obtained by him, when the premiums should be paid to the company. Held, that the termination of the contract by mutual agreement did not take away the agent's right to renewal commissions on the premiums paid on policies obtained by him during his term of Hale v. service. Second Division, April 22, 1890. Brooklyn Life Ins. Co. Opinion by Follett, C. J. Potter and Haight, JJ., dissenting. Affirming 46 Hun, 274. MRS. DR. BUTCHER'S BIRDS. [An expensive aviary is not a necessary for a poor curate's wife.] Which often made her pious husband growl. With an allowance from his child's estate. So Butcher bagged the birds; and when he read -Irving Browne, in The Green Bag. Editor of the Albany Law Journal: As one receiving stated instruction through habitual reading of the ALBANY LAW JOURNAL, I am prompted at times to put a question to my teacher for further information. Precision of expression without preciseness is greatly to be desired. Permit me therefore to refer to your parenthetical statement in an editorial note upon the Green Bag for June (41 Alb. L. J. 490), to the effect that no judge should be called "Mr. Justice" except a member of the Federal Supreme Court. Is it not a custom worthy of observance to refer to an opinion of the New York Supreme Court as having been delivered by Mr. Justice So-and-so, who orthologically is either a presiding or associate Justice of that court? By the way, is it the Green Bag or the JOURNAL that in the same note speaks of a corpus delicti WHO turned up alive after penalty for the crime had been paid? If no conviction of crime can be had without proof of the corpus delicti, and the corpse is the corpus delicti in a murder case, what profert should be made upon a prosecution for rape? June 21, 1890. M. ANALIVE. tions of drinking men or habitual drinkers is admit- There seems to be no well-defined or fixed boundary [We still think we are right about "Mr. Justice." It is not uncommon to apply the title to State magistrates, some of whom are justices and some judges by legal title, but they may well be called "Justice" or "Judge," according to the fact, leaving the distinctive term of "Mr. Justice" to the judges of the United States Supreme Court, to whom it is universally applied.—ED.] CHAPTER 163, LAWS OF 1890. Editor of the Albany Law Journal. PRATTSVILLE, N. Y., June 23, 1890. THE J. B. DALEY. COURT OF APPEALS DECISIONS. HE following decisions were handed down Tues- FIRST DIVISION. Appeal from the order of the General Term, affirming the order of the Special Term denying in part defendant's motion for stay of proceedings dismissed with costs, and judgment affirmed with costs-People, respondents, v. North River Sugar Refining Company, appellant. Two motions to dismiss appeals denied with costs in each-Elizabeth J. Weber, respondent, v. John M. Lester and others, appellants.-Motion to require respondent to receive copies of printed case granted upon payment by Mr. Moses to respondent of $10 costs of motion-Thomas F. Mason, appellant, v. Justine M. Cronk, administratrix, etc., respondent. -Judgment affirmed with costs-Jonas Lane and another, appellants, v. Charles Rosenberg and another, respondents.-Judgment affirmed with costs - H. Nelson Curtice, respondent, v. Amasa B. West, appellant.Judgment affirmed with costs-Orlando Burrelle, appellant, v. Pennsylvania Railroad Company, respondents. Judgment affirmed with costs-Wilson B. Sheldon, respondent, v. Western Union Telegraph Company, appellant.-Judgment affirmed with costs-Edward J. McLeod, respondent, v. John Maloney and another, appellants.- -Appeal dismissed with costs-Jacob Grimm, appellant, v. Village of Greenbush, respondent.---Judgment affirmed with costs-Florence A. Merrill, respondent, v. Peter Bruner and others, appellants. Judgment affirmed with costs-John Galwey and others, respondents, v. Jacob Nordlinger, appellant. Judgment affirmed with costs-James O'Laughlin, respondent, v. George H. Hammond & Co., appellant.-Judgment affirmed with costs-Erastus Corning, respondent, v. Leurendus B. Ashley, appellant.-Judgment affirmed with costs Chapter 163, becoming a law April 22, 1890, entitled "An act to prohibit excise commissioners, excise inspectors, police officials or their subordinates from being interested in the manufacture or sale of any spirituous or malt liquors, ales, wines or beer," developed by the pressure of the temperance power, illustrates the falsity in fact of the legal maxim founded upon public policy that every one is presumed to know the law, a positive presumption. From ignorance of its existence or application it has not very generally been-Michael Byron, respondent, v. Knickerbocker Ice complied with, and it will doubtless soon receive judicial interpretation with regard to the status of its neglectors, and in other respects. The temperance cause is giving rise to some nice points of law. Company, appellant.-Orders of Surrogate's Court and General Term reversed, with costs of appeal in the General Term and in this court-In re estate of Edgar M. Van Kleeck, deceased; Isaac W. Sherrill, Dutchess county treasurer, respondent, and Christ Church, Poughkeepsie, appellant.-Order affirmed with costs Under this particular law several questions arise. Is the act constitutional? Those who say it is not base their opinion upon the following grounds, that it dis--In re application of James W. Lamb.--Order criminates against a legal employment, attempting also to disqualify from office some who were qualified when elected or appointed, and that as by its third section it requires an oath of non-interest-see said section-it is therefore in direct conflict with article 12 of the State Constitution, which, after prescribing form of oath, says, "and no other oath, declaration or test shall be required as a qualification for any office of public trust." The last point can only be aimed at the third section, and the oath required by that section cannot perhaps be properly called an oath of office, as it simply provides a means of ascertaining eligibility. The law long has been that no tavern keeper can hold the office of justice of the peace, yet should one be formally elected he could take without perjury the constitutional oath of office. The oaths seem to be of a different nature. And the law against the employment in certain situa affirmed with costs-People, ex rel. Edward Walsh, with costs-Amelia P. Clement v. Nathaniel W. Bartis and another. Order affirmed with costs-People, ex rel. Hugh McCormack, appellant, v. John McClave and others, commissioners, etc., respondents. Order affirmed with costs-Hiram D. Hurd and others, respondents, v. Wilber F. Colton, appellant. -Appeals dismissed with costs-In re Department of Public Works; appeals of George Keller and Thomas Bolton. Appeal dismissed with costs-Mary Keifer, administratrix, respondent, v. Grand Trunk Railway, appellant.Appeals of Walter S. Church in each case dismissed with costs in each--Stephen Van Rensselaer v. John Jost Shafer and Egbert S. Wright.-Order affirmed with costs-William H. Waite, respondent, v. Nancy H. Simms and others.--Order reversed and motion granted with costs in this court and court belowAlice Laflin, respondent, v. Travellers' Insurance Company, appellant.-Order affirmed with costs-Charles E. Hubbell, receiver, etc., respondent, v. Syracuse Iron Works and others, appellants.-Order reversed and judgment of the board affirmed with costs-People, ex rel. George E. Corrigan, respondent, v. Police Board of Yonkers, appellant.-Order affirmed with costsJewett W. Brown and others, appellants, v. Edgar P. Walker, respondent. Orders reversed with costs of both appeals and motion denied with costs-People, ex rel. Peerless Manufacturing Company, respondent, v. Patrick J. Gleason, mayor, etc., appellant, and People, ex rel. Michael Coughlin, v. Same.Order of Special and General Terms reversed with costs in both courts -James MacLaury, trustee, etc., respondent, v. A. Bloomer Hart and others, appellants.-Order affirmed with costs-In re arbitration of Michael Bennett with Union Elevated Railroad Company of Brooklyn. SECOND DIVISION. Motion for reargument denied with costs-Charles Zoebish, appellant, v. Elizabeth Van Minden and others, respondents.- -Motion for reargument denied with $10 costs-Lewis B. Crane, respondent, v. George Gruenwold, appellant.-Motion for reargument denied with $10 costs-Jacob B. Tallman, appellant, v. John H. Murphy, respondent.-Order affirmed and judgment absolute rendered against appellant with costs--Rector, etc., of St. John's Church, Newcastle, respondents, v. Charles G. Teed, appellant.-Judgment affirmed with costs-Mary E. Jones, appellant, v. Lilian L. Jones and others, respondents.-Judg. ment affirmed with costs-Rochester Printing Company, appellant, v. Leslie C. Loomis and another, respondents. Judgment affirmed with costs-Emma C. Raub, appellant, v. New York Life Insurance Company, respondent. Judgment affirmed with costsCharles S. Turner, respondent, v. Edwin Conant, appellant.Judgment affirmed with costs - Henry W. McNab, respondent, v. Cassell & Co., appellants. -Judgment affirmed with costs - James E. Eggleston, respondent, v. Edward J. Woolsey, appellant.Judgment reversed, new trial granted, costs to abide event-Louisa M. Rauenstein, respondent, v. New York, Lackawanna and Western Railroad Company, appellant. Judgment affirmed with costs--Hannah Farrie, respondent, v. Supreme Council of the Catholic Benevolent Legion, appellant.-Judgment af firmed with costs-George C. Richardson and others, appellants, v. Hiram Exstein and others, respondents. -Judgment affirmed with costs-Ludwig Heck, appellaut, v. John Volz and another, respondents. Considerable outside dissatisfaction has been felt and expressed in connection with the present state of Goldsmith's tomb, which lies close to the Temple Church. An inspection of the tomb (which is occa sionally decorated by a wreath) will show a plain raised slab with the inscription, "Here lies Oliver Goldsmith," on the one side, and the dates of the great littérateur's birth and death on the other. The inscriptions could perhaps be judiciously renewed, but it is very hard to say what else could be satisfactorily done, and it is much to be hoped that no modern decorative art may ever replace or impair the dignified simplicity of the existing tombstone.- London Law Journal. Chief Justice Beasley, of New Jersey, who prides himself on the rural character of his dress and appear ance, while on a recent visit to New York city, was one afternoon standing on the steps of a prominent hotel when he was accosted by a perfect stranger, whom be at once sized up as a confidence operator. It has been a long time since we met," said the newcomer in an affable manner. 64 "Yes," said the chief justice, musingly, "quite a long time." "Are you enjoying your self as usual?" asked the man, evidently feeling for an opportunity to run in his little game. "Yes, as usual," answered the chief justice, with a sunny smile. "Still in the same old business, eh?" "Yes; still in the same old business." "What business is it? It's been so long since I've seen you that I declare I've quite forgotten." The chief justice's eyes sparkled merrily as he replied with an assumption of innocence which would have done no discredit to a first-class actor: "Sending rogues to jail." The confidence man stared at him, and then suddenly shot off down the street, while the chief justice looked after him with his usual innocence and benevolence.-N. J. Law Journal. Mr. J. Newton Fiero, in his brief in Matter of Will of Smith, 95 N. Y. 516, thus scouts the notion that no sane person ever commits suicide: "He evidently re gards a large number of the heroes of Plutarch's Lives as imbeciles since so many violated the canon 'gainst self-slaughter.' He evidently knows nothing of Demosthenes sucking poison from a quill and fleeing from the temple lest he defile its sacred precincts by his death, that he might escape the vengeance of his enemies; Brutus falling on his sword after the battle of Philippi; Themistocles taking poison to avoid the shame of bearing arms against his native country; Cato dying like a philosopher, are only insane men performing an insane act. The end of the lives of Cassius, Mark Antony and Cleopatra are to him only instances of death during delirium. The self-slaughter of Caesar's Legion in Gaul when surrounded by the enemy and unable to escape captivity only indicates folly the attempt of the Christian church to prevent to him a state of mental imbecility. He regards as suicide by refusing to suicides burial in consecrated ground, and imagines that the difference between the ancient and modern world in that respect is because the modern are of sounder mind. He necessarily scouts the opinion of Lord Bacon that there is no passion in the mind of man so weak but that it mates and masters the fear of death,' with contempt. M. Littré, a member of the French Academy, a calm and thoughtful scholar, deliberately states his opinion that suicide is justifiable on the ground that every man has a right to his moral liberty.' Louis Blanc wonders that there are people who at the same time forbid suicide and yet approve of capital punishment.' Goethe says, 'And the most refined, quickest, most painless death by an asp was worthy of a queen who had passed her life in splendor and luxury."" Mr. Fiero might have added that both Frederick the Great and Napoleon the Great contemplated if they did not actually attempt suicide, and their wits were tolerably sound. BAR Be BOO A |