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Verdict was directed for defendant in

Error to Erie County. Action upon a promissory note for $250. The plaintiff error. it was proved, was a bona fide holder for value without notice. Plaintiff in error

offered to prove the note was but a part of an instrument, which, when he signed it, was in the following form:

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Agent for Hay and Harvest Grinders;

Six months after date I promise to pay J. B. Smith or
order Two HUNDRED AND FIFTY dollars

for value received, with legal interest, without
defalcation or stay of execution.

T. H. BROWN.

bearer fifty dollars when I sell by

worth of Hay and Harvest Grinders, appeal, and also without

and that the paper, since it was signed,

had been cut in two.

This proof was objected to, and ruled

out.

Held. That if the maker of a bill, note

or check issues it in such a condition that it can be easily altered without detection, he is liable to a bona fide holder who takes it in the usual course of business before maturity; he cannot be discharged from his obligation by reason, or on account of h.s own negligence, in executing and issuing a note that invited tampering with. It is the duty of the maker of the note to guard not only himself, but the public, against frauds and alterations, by refusing to sign negotiable paper, made in such form as to admit of fraudulent practices upon them, with ease and without ready detection.

2. But in this case the maker did not sign what, upon its face, purported to be a negotiable promissory note, but a contract by which he was to become an agent for the sale of certain articles. Whether there was negligence, was clearly a question of fact for the jury. The line of demarcation, between the two parts might have been so clear and distinct, and given the instrument so unusual an appearance as ought to have arrested the attention of any prudent man. But it may have been otherwise. If there was no negligence in the maker, the good faith and absence of negligence on the part of the holder cannot avail him.

The cases of Phelan v. Moss, 17 P. F. Smith, 59; Zimmerman v. Rote, 25 P. F. Smith, 188; and Garrard v. Hadden, 17 Id. 62, are distinguishable from the present. In the two former, the party signed a perfect promissory note, on the margin ot,. or underneath which, was written a condition which, as between the parties, was part of the contract, and destroyed its negotiability, but it could easily be separated,. leaving the note perfect. In the latter the

note was executed with a blank, by which the amount might be increased without a score to guard against such alteration.

The evidence offered should have been from the 26th of April, 1872, and which received. said sum hath been often demanded but

Judgment reversed, and new trial or refused."

dered.

Opinion by Sharswood, J.

ORDER OF ARREST.

N. Y. SUPREME COURT.-GEN'L TERM.

FIRST DEPT,

Henry H Morange, appl't, v. Albert G. Waldron, resp't. Decided January 28th, 1876. Where the money may be received and credited in an account and the balance of account afterwards paid as a matter of general indebtedness no right of arrest exists under sub. 2 § 179 of the Code

To render the person liable to arrest under the above section of the Code the identical money received must be the property of the creditor.

Appeal from order setting aside execution against the person and discharging the defendant from custody.

An execution was issued against the person of the defendant upon the judgment recovered, because it was supposed that the action was one in which he might be arrested according to subdivision 2 of § 179 of the Code. No order of arrest was obtained in the case, but the cause of action set forth in the complaint was alone relied upon to justify an arrest upon the

execution.

Judgment was obtained without appli

cation to the Court for want of an

answer.

There was no allegation made that the urniture was the plaintiff's trop rty, though that may be reasonably inferred to

be the fact.

H. H. Morange, for appl't in person.
John H. Thedlock, for resp't.

Held, That from the facts appearing in the complaint there is nothing inconsistent with the defendants receiving the money and crediting plaintiff

the amount so received on account and afterwards paying the balance due with any other funds subject to their use and control. They appear to be consistent with the existence of just such an understanding. Receiving money for the account and benefit of the plaintiff imposed a different obligation from the fact of receiving it to be paid over to him. The averments in the complaint do not show that the balance sued for was money received by either of the defendants in a fiduciary capacity. To render the person liable to arrest under the provision of that subdivision relating to money received in a fiduciary capacity the identical money received must be the property of the creditor. When the money may be received and credited in account and the balance of account afterwards paid as a matter of general indebtedness no right of arrest exists under Sub 2, § 179 of the Code.

Order affirmed with $10 costs and disbursements. But execution having been

The following facts were averred in the issued in good faith, order modified recomplaint:

That the defendants were auctioneers, and as such sol and delivered for the account of the plaintiff divers pieces of furniture.

That "the defendant received for the account and benefit of the plaintiff in their capacity of auctioneers the sum of $221.78, and that there remains due and owing from the defend ints to the plaintiff th sum of $210.67 with the interest

quiring defendant to stipulate not to bring action for false imprisonment.

Opinion by Daniels, J.; Davis, P. J. and Brady, J. concurring.

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A voluntary payment cannot be re- selling and buying the stock so as to avoid covered. Fear of the result of an loss if possible.

arbitration is not DURESS, and can- The referee, however, found with the not affect the fact of its being made plaintiff that the arrangement was jo nt, voluntarily. and that upon the failure of Y. plaintiff only agreed to car: y one-third of the stock until it fell to 95, when defendants were to take and pay for it.

A person selling pledged stock under the rule" may purchase it himself It is not sufficient proof of the correctness of an account when presented, that no objection is made; enough must be shown to justify such an inference.

ers.

y as

On July 23d H. & Co. gave appellant and W. a written notice that they should hold them jointly liable for the whole acproceeded after notice to sell at the public count. Upon receipt of this notice W.

It is not PER SE unlawful as against public policy for several persons to to unite in speculating in a particu-board 7,100 shares of the joint stock upon lar stock. As to what kind of com- which he had loaned H. & Co., afte: July bination would be unlawful QUERE. 15th, 95 per cent of the par value, and This action was brought to recover a upon the sale he purchased in the stock, balance of account claimed to be due H. with the concurrence of appellant, leaving & Co., of which firm plaintiff was a mem-a deficiency of 85,380, which he claimed ber, and now holds the account of H. & Co., and cited them before the signment. The parties are all stock brok- arbitration committee of the stock board, It appeared that in the spring of but before the day to which the hearing 1870 W. & Y. arranged to deal in P. & R. was adjourned, they paid defendant that R. R. stock w th II. & Co. as their brokers. amount. This was allowed plaintiff. and Appellant soon after joined the enterprise, is included in the judgment. H. & Co. and the business e ntinued until July sold the remaining stock in their hands 15th, when the stock was much depressed and made up a joint account against the and a heavy loss seemed imminent. Y parties, which was delivered July 28th, thereupon declared himself unable to re- and showed a large balance due for which plaintiff recovered. spond to calls for margin. Appellant and W. each took and paid for one-third of the stock then in the "pool," which amounted to over 80,000 shares, and the sum claimed in this action is substantially for losses incurred in closing out the other third. Defendant claimed that the liability was not joint, that by the arrangement between W. & Y. and H. & Co. the former were to be liable only for their respective shares, and that this arrangement was unchanged when defendant came in, and that on July 15th, when Y. failed, that On the 27th of July H. & Co. rendered matters were compromised by an arrange- to defendants an account as claimed by ment that def naut and W. should each them. The referee found that it was actake and pay for one-third of the stock. cepted approved. There Was no

Held, That the payment by plaintiff was voluntary, as fear of the decision of of the arbitration committee was not duress, and, having made it with full knowledge of the facts, the controversy as to that stock was ended, and the judgment could not be recovered back.

It is to be observed that a person selling pledged stocks "under the rule" (so called) has a right to purchase himself, as in the case of foreclosure of other liens.

and that II & Co., were to assume the direct evidence of a ceptance or apother th rd, and that defendant and W. proval, and it only could be found as were to assist him in carrying it by loan-an i ference from not objecting. ing them money and manipulating and Held, That it could not have herect

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of an account stated, as the circumstances to justify an inference of assent are not shown. To render an account presented prima facie proof of correctness, there must be enough shown to justify such an inference.

It is not per se unlawful as against public policy for several persons to unite upon a special venture of dealing in a particular stock.

As to what kind of combination for stock operations, or what means used in pursuance of the purposes thereof, will be deemed unlawful, quære.

Judgment affirmed save as to $5,380 and interest, being the deficiency upon the stock sold by W.

Opinion by Church, J.

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It is claimed by plaintiff that the defendant is liable for the amount of the notes aforesaid, on the ground that no certificate had been filed, that the capital stock of the company (see Ch. 40, Laws 1848, p. 56) had been paid in full, and failure to comply with the provisions of the statute.

The complainant alleged the recovery of a judgment upon such notes against the Ophir Mining Company aforesaid, in the Territory of Colorado.

Subsequently it was discovered that the judgment aforesaid, was recovered upon the loans by plaintiff to the Ophir Mining Company, for which the notes aforesaid were given.

And this motion is made for the purpose of amending the complaint, so that same shall clearly state a cause of action for the amount of the loans by plaintiff to the Ophir Gold Mining Company, instead of, as now a cause of action on the notes. The motion in the court below was opposed on the ground, that the motion sought to change entirely the ause

of action.

2. On the ground that a new action on the loans would be barred by the statute of limitations.

The court below denied the motion to amend, from which order this appeal was taken.

It was claimed on the appeal in behalf of respondents that the order was not appealable.

J. Van Cott, for applt.

Robinson & Scribne', for respt.

This action was brought to recover of the defendant as a stockholder of the Held, That under the later decisions of Ophir Mining Company, the amount of the Court of Appeals this order must be certain promissory notes upon which held appealable, (53 N. Y. 215; 29 N. Y. judgment had been obtained in Colorado, 418; 53 N. Y. 322; 10 Abb. Pr. (N. S.) amounting together to about $7,000, 416). made by the Ophir Gold Mining Company

Held further, That the court below to plaintiff. The Ophir Gold Mining misapprehended the nature and object of Company was incorporated under a gene- the amendment in regarding the proposed ral act of the Legislature of the State amendment as the substitution of a new of New York, provided for the incorpora- cause of action for that set out in the tion of mining and other companies. complaint.

The notes were the evidence of the indebtedness, it is true, and yet as the indebtednes was created simultaneously with the notes, a recovery upon the notes would be of legal necessity a recovery upon the original indebtedness of the company. Even under the present allegations of the company, proof of the facts as they now appear would not be a fatal variance, and it would be the duty of the court at the trial to amend the complaint in accordance with the facts as they are now shown on the motion.

the sale it was discovered that no guardian ad litem had been appointed for defend. ant's wife, she being an infant. On the ground that this irregularity would prevent his getting a good title, he sought to be released from his bid, but his motion was denied and he was ordered to take the title.

The order further provided that the referee should pay from the ten per cent deposit in his hands the referee's fees, costs, expenses, &c, and hold the balance to meet any defficiency from the second sɩle, and that unless he completed the purenase the judgment should be vacated and the aetion be prosecuted against his infant wife appeal to the General Term the order was modified so as to release defendant from his

On

That it thus appearing that the amendments would not have the effect to substitute a new cause of action, the objection that the Statute of Limitations had run falls to the ground. Order reversed and motion to amend bid, and ordering the referee to pay the exgranted. Opinion by Davis, P. J.; Brady and were perfected, out of the deposit, and to Danicis Justices, concurring.

PRACTICE. FORECLOSURE SALE.
N. Y. SUPREME COURT, GENI. TERM,
FIRST DEPT.

Knight, respl, v. Maloney, applt.
Decided December 30, 1875.

penses of the re-sale, after the proceedings

pay the balance to defendant, after deducting costs, &c. Defendant failed to take the title and the judgment was set aside and proceedings taken in due form against the infant defendant. and on the entry of this second judgment a second bill of costs was taxed in full, which, with the expenses Order releasing defendant, bidding at of the second sale, the referee deducted foreclosure sale, of his bid, and di- from the purchase money. On the ground recting referee to pay from the ten per that the order of the General Term recent deposit expenses of sale, fees and quired the deduction of only the expenses expenses of re-sale; defendant enti- of the second sale, and not that defendant tien only to the balance of deposit should pay two bills of costs, fees and exafter paying referee's fees and expenses, defendant sought for an order repenses of first sale. attorney's costs and expenses of re sale. Improper entry of an order should be corrected by a motion to resettle the

order.

Appeal from order denying motion for an order directing the referee to pay over certain moneys received by him as deposit on a foreclosure sale.

This action was brought to foreclose a mortgage on certain property owned by defendant and his sister.

Defendant, on the foreclosure sale, bid in the property, depositing with the referee

quiring the referee to pay back the amount deposited with him by defendant, and from the order denying the motion this appeal is

taken.

Jos. C. Hays, for respt.
Jno. II. Hull, for applt.

On appeal Held, That, as the order was entered, the appellant was entitled only to the balance left of his ten per cent, after deducting referee's fees, expenses of the first sale, the attorney's costs and the expenses of the re-sale.

If the order in any respect was improper

ten per cent of the purchase money. After ly entered, the remedy for its correction

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