Joshua M. Van Cott for applt. gross mismanagement and violation of duty while acting as trustee may be revived against his representatives in case of the death of such former trustee pending such proceeding was to establish a personal liability ings. tion to be relieved from the trust, and such proceedings were had that the prayer of his petition was granted. Some time after the order to that effect had been en Held, The direct object of the proceed against Hoguet, growing out of the alleged mismanagement of the trust, and the order of the court stood across the path of that proceeding. It was a complete answer to the claims and allegations of the cestui que trust, while it stood intact as a record of the court. The equity Appeal from order directing the representatives of Anthony L Hoguet, deceased, to be male parties, &c. Anthony L. Hoguet was one of the trustees to carry out the provisions of the will of James Foster, Jr., and while acting as such trustee he presented his peti-powers of the court were broad enough to ing as such trustee he presented his peti- entertain a direct application on broader avoid the discharge for fraud; and it was grounds than would uphold a suit to not at all necessary to require the cestui que trust to resort to an action. In entertaining the application and directing the reference to ascertain the facts, the court acted within its clear equitable powers, and the cestui que trust acquired rights in the proceeding of which she ought not to be deprived by the death of Hoguet. The proceeding directly affected his estate, which by his will is now in the hands of the executors. It is not perceived that any sound reason exists why the proceeding should not be continued. If sufficient facts are established upon the reference to call for the opening of the order it certainly ought not to stand with the force of a judgment to protect the estate of Hoguet from just liability to the cestui que trust. It is very true the provisions of the Code and of the statute touching the revivor of suits are in strictness ap tered, Mary E. Whittlesey, the cestui que trust under the will, applied to have the proceedings by which Hoguet was discharged, opened upon allegations of an abuse of his trust in making improvident and improper investments in respect of which she claimed an accounting. On the application an order of reference was made to ascertain and report the facts. Pending the reference, and while the investigation under it was proceeding, Hoguet died and the cestui que trust, Mrs. Whittlesey, applied to have the representatives of his estate brought in as parties to the proceeding by an order of the court, which should revive and continue the proceeding for that purpose. The order was granted, and the executrix of Hoguet brings this appeal from the order. The proceedings by Hoguet for his discharge from the court was by petition under the provisions of the Revised Statutes, and the proceeding upon the part of Mrs. Whittlesey to open the order and investigate the allegations upon which she asked it to be done, was by petition. It was urged by the appellants that the death of Hoguet arrested the proceedings and deprived the court of all powers to continue it. That the statute remedy was personal, and the person was withdrawn by the death of Ioguet. plicable to actions eo nomine. But that does not deprive the court, we think, of its equitable powers over this proceeding to bring in the representative who has become interested in the question. Order affirmed, with $10 costs. Opinion by Davis, P. J.; Daniels, J., concurring. Brady, J., dissents on the ground that this proceeding to disturb the order discharging Hoguet is not an action, and therefore not embraced within the provisions of the Code with reference to rev vor against representatives of a de- subject to the lien of a mortgage, ou which ceased party, which provision applies to the plaintiff, as assignee, has brought actions only, and that the court has no suit against the purchasers as terre tenjurisdiction to bring in the representations ants. The single question raised is, of Hoguet in this proceeding. whether by the operation of the act of 1867, the lien of the mortgage was di DISCHARGE OF MORTGAGE BY vested by the sale. JUDICIAL SALE. SUPREME COURT OF PENNSYLVANIA. Wright v. Vickers, admr. of H. P. Montgomery, with notice to James Goodchild et al, terre-tenants. Decided March 30, 1876. A sale in partition discharges a mort This was a sci. fa. on a mortgage given by H. P. Montgomery, who was a cotenant with other parties of certain real estate on South Broad street. The affidavits of defense stated that prior to the execution of the mortgage a writ of partition had been issued, and after the delivery of the mortgage a judgment quod partitio fiat was entered and sale of the premises had been duly made thereunder. The court below held the affidavits sufficient, and then the plaintiff sued out this writ of error. The act of 20th of March, 1867, con tains a provision that the lien of a first mortgage shall not be destroyed or in any way affected by any judicial or other sale whatsoever, whether such judicial or other sale shall be made by virtue or authority of any order or decree of any orphans' or other court, or of any writ of execution or otherwise what soever. Here, lands in the ownership of several tenants in common have been sold under proceedings in partition of the Court of Common Pleas. The undivided interest of Hardman Phillips Montgomery, one of the co-tenants, was Held, That the sale in partition discharged the lien of the mortgage; that by due process of law all rights of the mortgagor in this land have been extinguished. In due legal form their exact equivalent in money has been obtained. This money is the measure of the value of the mortgagor's land on the one hand, and of the extent of the mortgagee's lien on the other. Certainly there can be no hardship in a legal rule that gives to a creditor the entire property which he has accepted as the security for his debt. The order of the Court of Commɔn Pleas discharging the rule for judgment for want of a sufficient affidavit of defense is affirmed. Opinion by Woodward and Paxon, J. J.; Agnew, C. J. and Sharswool, J., dissenting. N. Y. COURT OF APPEALS. Paterson, respt., v. Birdsall and wife, applts. Decided Feb. 25, 1876. Where a valid, subsisting mortgage has been formally satisfied and discharged, and the amount thereof included in a new mortgage which embraces other amounts, and the latter mortgage is declared invalid as being usurious, the former mortgage revives And the mortgagee in the second having paid off the first, upon having his mortgage declared void for usury, is entitled to subrogation to the rights of the first mortg iyee. This action was brought to enforce the Geo. T. Spencer for respt. subrogation of plaintiff to the rights of cne T, under a mortgage of $2,000 executed to him by defendants, dated May Held, no error: That a valid and sub14, 1849, which had been paid by plaintiff, sisting debt is not destroyed because inwho was a subsequent mortgagee, and who cluded in a security, or made the subject had a decree of foreclosure and sale upon of a contract void, either because violative his mortgage against defendants, for of the statutes against usury, or for other $2,102.81. The premises were bid in for reasons, although formally satisfied and that amount by plaintiff, and were con- discharged, and the security has been surveyed to him Oct. 30, 1858, and conveyed rendered, it may be revived and enforced back to defendant's wife, Nov. 1, 1858, in case the new security is invalidated and and she and her husband executed to avoided. 5 Wend., 595; 36 N Y., 520; plaintiff a mortgage for $5,311.81, which 37 id., 353; 39 id., 325; 56 id. 214; 6 included the amount bid at the foreclosure Seld., 189; that even if plaintiff, at the and sale, the mortgage to T., which plain-time of consummiting the usurious agreetiff assumed, and $1,000 in addition. ment, had been the holder of the bond May 17, 1859, plaintiff paid the T. mort- and mortgage in suit, and cancelled and gage and the interest thereon. In an surrendered it in pursuance thereof, it action by defendants against plaintiff, the would have been revived upon the annuldecree of foreclosure and sale, and subse-ling of the usurious agreement and securiquent conveyances, and the mortgage ty, and he could have enforced the same, from defendants to plaintiff, were declared subject to any intervening equities of to be void and were set aside on the third persons that might have come into ground of usury. Defendants gave in existence. Dewitt v. Brisbane, 16 N. Y., evidence an instrument executed by plain- 508, and Schroeppel v. Corning, 5 Den., tiff, dated Nov. 1, 1858, reciting that he 236, distinguished. had conveyed certain premises to defendAlso Held, That plaintiff, as a junior ant's wife, which were subject to a mort- incumbrancer, had a right to pay the gage of $2,000 and interest, and that mortgage and to be subrogated by assigndefendant's wife had executed to plaintiff ment, or act and operation of law, to the a bond and mortgage to secure the pur-rights of the mortgagee, in support of his chase money of said premises, and that said purchase money was understood to include the mortgage to T., which plain tiff agreed to pay off. The complaint alleged, and the evidence tended to show, that the T. mortgage was not to be satisfied, but was to be assigned and held as a lien on the premises until the payment of the mortgage to plaintiff. Defendant's counsel moved to dismiss the complaint. This motion was denied, the court holding that, although the money was advanced equities, the usurious agreement may be laid out of view as the moving cause of the redemption, and the mortgage, as against the mortgagors, must be regarded as still existing. Story's Eq. Jur., §§ 635, 1,227; 3 Barb. 534; 4 Seld, 44; 42 N. Y., 89; 12 How. Pr., 67. Judgment of General term, affirming judgment for plaintiff, affirmed. Opinion by Allen, J. to pay the T. mortgage in pursuance of PROMISSORY NOTE. BONA FIDE an agreement that was corrupt and usurious, plaintiff had the right to subrogation, and the mortgage was a valid lien in his favor, and directed judgment for the relief demanded in the complaint. HOLDER. SUPREME COURT OF MAINE. Roberts v. Lane. Decided February, 1876. The bona fide holder of negotiable paper gave any reason for not indorsing the can recover without regard to any notes, nor were they asked to indorse fraud in its inception. them; that the cashier knew the law reOne who puts in suit a note shown to quired two names, and it was not customary have been obtained from the maker by to discount without two; but that the fraud, assumes the burden of estab- to discount without two; but that the bank had a surplus of money, the presilishing his own good faith. It is immaterial what the plaintiff's dent liked the paper, and the cashier took knowledge may be, if any prior owner it and placed it in the drawer as cash; whose rights he has was a bona fide that they took that course frequently to holder of the note. get interest for the Penobscot Savings Bank when it had a large amount on deposit in the Eastern Bank. It does not affect the principles of law above stated, that the note was made to the maker's order and bore only his indorsement, if it is shown that in fact it was purchased by the plaintiff's predecessor in title, in good faith, and for value, of him to whom the maker first gave it. The defendant made a promissory note February 15, 1871, payable to his own order in six months from date, indorsed it in blank, and passed it in payment of his subscription for some worthless stock, and he claimed that it was procured from him by fraud, in which Leavitt and Smith, the first known holders, were so far involved as to prevent them from sustaining an action upon it. No other name than the defendant's was upon the note. The defendant being called upon to pay the note to the Eastern Bank, refused, on the ground that it was obtained from him by fraud. The note lay in the bank drawer for a year, when the plaintiff, as he testified, having heard what the talk was about the paper, but regarding it as the duty of the officers to see the bank harmless, and as there was negligence on his own part in not having the notes indorsed, gave his check for the amount paid by the bank, and took the note as his own. Held, 1. That the defendant's allegation of fraud in the inception of the note not having been traversed, the burden of The evidence shows that within five proof is on the plaintiff to show that he days after the note was made, it was offer- has the rights of a bona fide indorsee; ed with others of like character, amount- that he might do this by showing that he ing in all to something over $9,500, for himself, or any prior holder whose rights discount at the Eastern Bank, Bangor. he has, came by the note fairly for value The plaintiff is president of that bank, before maturity without knowledge of the and also of the Penobscot Savings Bank, fraud. which is a large depositor at the Eastern Bank. The cashier of the Eastern Bank, who was also treasurer of the savings bank, testified that the Eastern Bank bought the note and paid Smith for it, less the reasonable discount agreed upon, by a check on the Eliot National Bank of Boston, which was credited with the amount of the check February 20, 1871; that there was no private agreement or understanding with Smith, and no entry of the note upon the books of the Eastern Bank; that neither Smith nor Leavitt 2. That if any intermediate holder between the plaintiff and defendant took the note under such circumstances as would entitle him to recover against defendant, the plaintiff would have the same right, even though he may have purchased when the note was overdue, or with a knowledge of its infirmity as between the original parties. 3. It makes no difference that it was indorsed in blank by the maker, so that Judgment for plaintiff. CONTRACT. DAMAGES. N. Y. SUPREME COURT, GENERAL TERM. FOURTH DEPT. fendant understood that plaintiff would make further advances for another year, and that by reason of his refusal so to Steele et al. respts., v. Scott Lord applt. do defendant was obliged to sell out at a loss cf over $10,000, and that owing to the failure to make advances as above, and Decided January, 1876. also owing to unconscionable deductions In the absence of fraud or mistake the amount agreed upon between parties to a contract as to deductions for de-on account of defective sets, defendant jects must stand, and the fact that suffered the above loss. they were unreasonable makes no difference. Parol evidence of drafts lost or destroyed is admissible unless such loss or destruction was intentional and fraudulent. Test applied as to what facts a referee should or should not find at request of parties. This is an action on an account, was tried before a referee, and there was a judgment for plaintiff. Defendant is a lawyer, and in 1869, he entered into a contract with plaintiffs to furnish them 6,000 sets of croquets at a certain sum per set, and subsequently a second contract was made for 2,000 sets at a less price. The defendant in his answer sets up that he is a lawyer and had but little to do with the business, that when the first contract was made the plaintiffs, in order to induce defendant to enter into said contract, represented to him that they could procure from other manufacturers cro quet sets of equal quality at as cheap The defendant, by his contract, allowed plaintiff to make deductions for defective sets but not to the extent claimed by the plaintiffs. Some of the drafts used in business and had been lost or disbursed, and the referee in making up part of plaintiff's account, allowed secondary evidence of their contents under defendant's objection. Held, That the defendant has no right to complain as to allowance for defective sets: they were made in pursuance of the in his answer admits that he consented to very terms of the contract, and defendant them but not to the extent claimed by plaintiffs. It was competent for the parties to agree as to the amount that should be deducted, and in the absence of fraud or mistake, the amount agreed upon must stand as the proper amount to be deducted, and as to this item no fraud or mis take is pretended. That the loss or destruction of the drafts did not preclude plaintiff from recovering on them as lost or destroyed instruments. The less which must preclude proof of the rates as named in the contracts, that defendant relied on these representations, contents of a written instrument must be and that they were wholly untrue, and he intentional and with the view of gaining claims damages for such false representa- an advantage by resorting to parol proof of their contents. Although the drafts tions. The defendant also alleges the same false representations as to the second were paid, parol proof of their contents under the circumstances, were admissible. contract. That, although defendant was a lawyer, &c., if he engages in business and in that business he enters into contracts, he is bound, unless fraud is shown. The refusal to make advances was no defence. The defendant also alleges that he was at great expense in perfecting machinery to make croquet sets, and had to procure advances from plaintiffs in advance of the delivery of sets, and that when the second The referee was requested by defendant contract was made it was for the purpose to find specific questions of fact and he of procuring further advances, and de- refused. |