BANKRUPTCY. ENGLISH HIGH COURT OF JUSTICE. CHANCERY DIVISION. In re Pettit's Estate. Decided January 22, 1876. have certain remedies still subsisting, which are pointed out by the Act and Rules, but the right to take the debtor's property acquired since the close. of the bankruptcy is not one of those remedies. After the close of a bankruptcy, property falling in to the bankrupt belongs After the close of a bankruptcy, the to him, and not to the trustee in bank-bankruptcy exists for certain purposes ruptcy, although the bankrupt has not only. Amongst those purposes is not obtained an order of discharge. that of vesting the debtor's after ac Adjourned summons. On the 6th of December, 1872, Rich- quired property in the trustee. ard Pettit was adjudicated a bankrupt, Opinion by Bacon, V. C. and on the 14th of January, 1873, a APPEARANCE. JURISDICTION trustee was appointed. SECOND DEPARTMENT. Ferguson, applt., v. Crawford and others, respts. On the 18th of June, 1873, the bank- N. Y. SUPREME COURT, GEN. TERM. rupt passed his last examination; and by an order made before four o'clock in the afternoon of the 14th of April, 1874, and filed on the 16th of April. following, the bankruptcy was declared to be closed. On the same 14th of April, but after five o'clock in the afternoon, R. Pettit's father, Walter Pettit, died, having by will bequeathed to him one fifth of his (the testator's) residuary estate. On the 23rd of April, 1874, the trus tee in the bankruptcy applied for his release, which, by an order of the 16th of June, 1874, was granted to him. R. Pettit had not obtained, nor had he applied for, an order of discharge. The executor having paid the fund representing R. Pettit's share into Court, the Registrar of the Court of Bankruptcy having jurisdiction in the bankruptcy during its continuance, claiming to be the present trustee of the estate and effects of R. Pettit (see sect. 83, sub. sect. 3, of the Act, and Rule 124 of the Bankruptcy Rules, 1870), on the 23rd of November took out the present summons, which was in effect an application that the fund might be paid to him. Decided February Term, 1876. An unauthorized appearance by an attorney gives jurisdiction, and the subsequent proceedings in the action cannot be attacked in a collateral proceeding, on the ground that such appearance was unauthorized or forged. Appeal from a judgment in favor of the defendants, in an action brought for the foreclosure of a mortgage on premises on which a first mortgage had been foreclosed, in an action in which the present plaintiff appeared by attorney. Plaintiff offered to show that the notice of appearance was a forgery; the evidence was excluded. William F. Purdy, for the applt. Held, An appearance, without authority, has been held, in this State, to give jurisdiction, and could not be attacked collaterally. The rule rests upon grounds of public policy, and not wholly upon the law of agency. Judgment affirmed, with costs. Opinion by Barnard, P. J.; Talcott, Held, Where a bankruptcy has been closed, and the debtor has not obtained an order of discharge, the creditors J., concurring. NEW YORK WEEKLY DIGEST. [No. 15. VOL. 2.] MONDAY MAY 22, 1876. ST. LOUIS COURT OF APPEALS. State er rel. Kennedy v. Union Merchant's Exchange, et al. Decided April, 1876. chief commercial centers of the world; that this Exchange is the business mart of St. Louis, and owns valuable personal property in which all the members have a vested interest; that relator became a member of said exchange on the 18th day of July, 1871, and has, up to the time of the alleged wrong complained of by him, remained so; and that on 17th July, 1874, he was suspended from membership by the directors, and has since that date been denied access to the floor of the exchange, and deprived of all the benefits of membership. A by-law of a corporation which com pels members to submit all their business controversies to arbitration, and requires them to comply with the These facts are set up in the petition, awards of the arbitrators, on pain of· suspension or expulsion, is unreason- and are not denied in the return to the able, and hence void. writ. An alternative writ was issued; A by-law will not be set aside as un- and, in their second amended return to reasonable, if there is any equipoise this writ, the appellants set up that, of opinion in the matter; its unreasonableness must be demonstrably prior to their incorporation, the Union Merchants' Exchange had long existed shown. A by-law made in pursuance of an ex- as an association of merchants of St. press power in the charter to make such laws, is void, if contrary to the common law, or to a legal enactment. Appeal from circuit court of St. Louis county. This is a proceeding by mandamus to compel the appellants to reinstate the relat r as a member of the Union Merchants' Exchange of St. Louis. Louis, with rules, regulations, and bylaws to which members were required to assent; that by its charter it has power to make such rules and regulations as may be proper and needful, and possesses all other ge neral powers incident to corporations and not inconsistent with the laws of Missouri and of the United States; that, by said It appears that relator is a general charter, the then existing rules, regulaprovision and commission merchant of tions and by-laws are declared the rules St Louis; that defendant, the Union of the corporation until regularly reMerchants' Exchange, is an incorporat-pealed or changed; that the by-laws ed institution, of which the other de- and regulations now in existence were fendants are directors; that the Ex- legally enacted in accordance with the change numbers among its members charter, and were in force when plaintover one thousand merchants and busi- iff's relator was admitted as a member; ness men of St. Louis, and occupies and that he applied to be admitted subcommodious rooms in which these mer-ject to the existing rules and by-laws, of chants daily meet to trade, and where, which he had full knowledge, and was at the common cost of the members, admitted subject to these rules; and and for their exclusive benefit, they that he has knowingly and deliberately daily receive trade reports from the violated these rules, and been lawfully To set aside a by-law, there must be no equipoise of opinion in the matter; its unreasonableness should be demonstrably shown. A by-law made in pursuance of an express power to make such laws, if contrary to the common law or to a legal enactment, is void. Every by-law must be reasonable and lawful. (8 Pick, 96; Dunham v. Rochester, 5 Cowen, 462; Com. Dig., By-law B.) suspended in accordance with the bylaws for this violation of the laws of the association. That he has, by the by-laws, a legal right to apply to be reinstated in his rights as a member, and has neglected to do so. This is a mere outline of the substantial features of return to the writ. It is not necessary to set it out in detail nor to refer to any technical objections made to it in the demurrer filed by the relator of plaintiff. The demurrer was sustained, and a per- In view of the character and objects emptory writ ordered; and a motion of this corporation, and the manifest for a new trial and a rehearing having inconvenience to which every trader been overruled, the cause is brought up must necessarily be subject who is not by appeal. permitted to join, or is expelled from The by-laws of the Union Merchants' the chief mart of commerce in the place Exchange are set out in full in the re- of which he is a citizen and a trader, turn; and the offense committed by re- we think a by-law compelling the memlator, for which he was suspended, was bers of the Union Merchant's Exa refusal to comply with an award of change to submit their controversies to arbitrators, to which he had, in accord- arbitration on pain of suspension or exance with the by-laws, agreed in wri-pulsion is unreasonable in the legal and ting to submit. technical sense of that term, and that it cannot be sustained. Held, The law is not opposed to arbitration. On the contrary it is said to be the policy of the law to encourage these domestic tribunals, although they may, if they choose, disregard the rules of law in their decisions. We are, therefore, of opinion that the circuit court committed no error in sustaining the demurrer to the return in this case. The judgment of the circuit court is affirmed. Opinion by Bakewell J.; Gantt and Lewis, J. J., concurring. TAXING COSTS. FIRST DEPT. But though the law encourages this reference to a tribunal of the choice of the parties, which relieves the courts of a burden and the public of a heavy expense, and which sometimes can do and does a right that the courts cannot, it will not have persons coerced into waiv- N. Y. SUPREME COURT. GENERAL TERM, ing their strict rights if they choose to insist upon them. Every citizen has a right to the protection of the equal laws, and to all the security against irremediable injustice which the wisdom of centuries has provided in those traditional rules or legislative enactments that govern proceedings in courts of justice. Charles Goodman, et al., v. F. Guthman, Jno. H. V. Arnold, respt., Henry Tetlow, applt. Decided March 31, 1876. Order affecting a substantial right, though discretionary, is appealable. Where plaintiff's attorney taxed unlaw ful items in his bill of costs, a subse quent judgment creditor of the same Held, That the application by peti costs, and payment of the excess to pe titioner. dehtor may apply by petition to have tion was in proper form, and sought the the costs readjusted, and the excess proper remedy, a readjustment of the applied to his judgment. The motion papers are properly served upon the first plaintiff's attorney. On the 8th of April, 1873, the plaintiff, Goodman, brought suit against Guthman, and attached certain money due the latter from the Imperial Ins. Co. On the 24th of April, Tetlow brought suit against the same defendant, and attached the same money. Judgment was entered in both actions by default. The amount received ($579.30) being insufficient to satisfy both claims, Goodman's judgment, $529.70, was first paid. Of this but $368.70 was paid to Goodman, and $190.60 was taxed as costs, which were taxed the same as if an issue had been joined and a trial had. The disposition made of the balance does not appear. The plaintiff in the second action claiming that the costs taxed in the first were excessive and illegal, made application by a petition, setting forth the facts in proper form, to have the costs readjusted, and to have all the excess over the legal costs applied on his judg ment. This was opposed, mainly, on the ground that the attorney, on whom the moving papers had been served, had settled with his clients, paying them the amount they were entitled to receive, and that he had no further connection with the matter. The court below denied the motion. The order affecting a substantial right, even though it may involve the exercise of discretion, is appealable. J. II. V. Arnold, for respt. A. II. Hitchcock, for applt. On appeal The court has full power to dispose of conflicting interests and claims, arising out of the use made of its process and judgment, when application is made upon motion by way of petition and notice, and to adjust and determine a proper mode for distributing the proceeds of the debtor's property equitably among the creditors. In this case the attorney is the substantial party proceeded against, and should not be permitted to defeat the application, by settling with his clients, for they have received none of the property required to be refunded. Nor was it essential that the motion papers should have been served upon them. The attorney in the first action, through an improper adjustment of the costs received a considerable amount which otherwise would have been applied upon the second judgment. He had no right to the items unlawfully charged, and should not be allowed to retain them because of a successful expedient, which he ought not to have adopted. Order reversed, and an order entered directing a readjustment of the costs in the controversy. Opinion by Daniels, J.; Brady, J., concurring. TRUSTEE. N. Y. COURT OF APPEALS. Hull, applt. v. Mitchison, respt. Decided February 22, 1876. A trustee who has faithfully performed his duty as such cannot be removed on the application of the cestui que trust. Application by a trustee for relief re-affirmative judgment in accordance fused in a peculiar case of a foreign with the prayer of her complaint. trust. That before defendant could have the relief given by the judgment it was necessary for him to show that the provision in the past nuptial contract given plaintiff (cestui que trust) the control of the trust estate, made a legal active trust in the grantee under the laws of Pennsylvania, and that this must be found by the referee as a ground for his legal This action was brought to remove defendant from the position of trustee and for the appointment of a new trustee resident in this State. The referee found that plaintiff, under the will of her father was entitled to a certain interest in real estate in Pennsylvania; that plaintiff by a post nuptial contract executed by her and her husband, which conclusion and judgment, and there bewas lawful and valid under the laws of Pennsylvania, conveyed her interest in the real estate to one K. as trustee, and tive relief sought could not be sustained. provided that K. should, at her option, ing no such evidence or finding, the judgment giving defendant the affirma Per curiam opinion for reversal and permit and suffer her, she being a mar-new trial. AMENDING PLEADINGS. and income durin; her natural life for N. Y. SUPREME COURT, GENERAL TERM. her separate use and support. K. having died, defendant was appointed trustee. Prior to defendant's appointment the real estate had been converted into money which was paid over to defendant as trustee, and by him invested in the purchase of a house and lot in New York city. The referee also found that defendant had in all things performed his duty as trustee, and found as a conclusion of law, the answer asking affirmative relief to that effect, that defendant was entitled to have the trust estate converted into money hat it might be reinvested in a lawful and proper manner, and that he was entitled to retain the amount due to him for commissions and disbursements and the expenses of reinvesting the trust fund. v. FIRST DEPARTMENT. Wm. A. Seaver, collector, &c., respt., The Mayor, &c., applt. Decided May 5, 1876. Where defendant believes in good faith that he is concluded from pleading a certain defence, and therefore omits it in his answer, but afterwards and before trial, learns that the disability as to the particular defence is removed, he should be allowed to amend his answer, and to set up this defence. case defendant should pay In such a all costs incurred from the serving of his original answer. Appeal from order denying motion for leave to serve an amended answer. This action was brought in February, 1873, to recover a balance of $90,337.50, claimed to be due plaintiff's decedent, Geo. F. Comstock for applt. for labor and money expended in regu W. W. MacFarland for respt. lating, grading and curbing 10th Held. That the referee having found Avenue from Manhattan to 155th St. that defendant had performed his duty The complaint set out the nature and as trustee, plaintiff could not have an terms of the contract, and also the |