But the action being an equitable one, his fees and expenses as receiver, and the court will order its discontinu-sufficient to pay off and discharge the ance upon the payment of the judg- Searles judgment, and enable him to ment under which the receiver was appointed, together with his costs, fees and expenses as receiver. fully complete and discharge the duties LOCAL ASSESSMENTS. N. Y. SUPREME COURT. GENERAL TERM. In November, 1875, John Searles recovered judgment against Charles D. Reeve, for $1,000, besides costs. Chas. D. Reeve, at this time, was the owner, as a tenant in common with others, of an interest in real estate, subject to the courtesy of his father. Execution having been duly issued and returned unsatisfied, proceedings supplementary to execution were instituted against Reeve, People, ex rel. Andrew J. Thompson, and terminated in the appointment of plaintiff as his receiver. Such appoint-applt., v. Mayor and Common Council ment having been duly perfected, there- of the city of Syracuse, respt. ceiver obtained an order, ex part, from the supreme court special termn, granting him leave, to commence an action against all proper parties for the partition of said real estate. An action of partition was thereupon commenced by such receiver, against the other tenants in common, and all parties interested in. the real estate. The matter then came up at special term, on a motion made by defendant D., to set aside the order granting leave to bring this action on the ground that a receiver cannot maintain an action of partition, and that the court should in- Held, 1. That a receiver of a tenant in common, appointed in proceedings suplementary to execution, may maintain an action for partition of the real estate. Decided January, 1876. Where a single improvement was prop erly ordered by the city authorities, and was let under separate contracts, and distinct assessments made to meet the expense under each contract, which assessments were afterwards annulled, and a single assessment made to meet he expense of the whole improvement, the latter assessment is valid; that the improvement was done under separate contracts affects no substantial right. This was a writ of certiorari to re view an assessment, &c. The writ was granted, and this appeal is from such order. The object of the certiorari is to invalidate an assessment for the expense of paving East Genesee street, from the west side of Grape street to the east side of Almond street, in the city of Syracuse. The return made to the writ shows that on the 23d of May, 1870, a petition for this improvement, signed by a 2. That the action being in equity, majority of the owners of the property the court in its exercise of equity, upon upon the line thereof, was presented to the receiver being paid his costs of suit, the common council; that on the 10th of September, 1870, notices of such proposed improvement were served up on the parties to be assessed, conformably to the requirement of section 1, title 7 of the charter; that thereafter the common council entered into a contract for the making of a portion of said improvement, namely: that between the west side of Grape street and the east side of Orange street; and that subsequently they entered into a like contract for the making of the residue of said improvement, and finally caused separate assessments to be made in the manner provided in the charter to defray the expenses of the respective parts of the work. The only irregular ity complained of in the proceedings of the common council arose from their acts in dividing the improvement into two sections. But the separate assessments were subsequently cancelled, and the one under review was made, which embraces the expenses of the entire improvement from Grape to Almond street. Burdick & Love, for relator. Ruger, Wallace & Jenny, for respt. Held, The return is conclusive as to the facts stated in it, and must be taken as true. If it is false, the relators must seek their remedy by action. (Haines v. Judges of Westchester, 20 Wend., 625; People v. Morgan, 65 Barb., 473.) The return shows the requisite petition for, and notices of, the proposed improvement, that the work was done under contract, and has been completed. The fact that it was done under two contracts, instead of one, affects no substantial right. No legal error in the assessment has been pointed out, nor is it alleged that it was not prepared and authenticated conformably to the charter. The fact that it was preceded by assessments for the expense of separate parts of the work, which were set aside and annulled, does not, in our opinion, affect its validity. The objections of the relators seem to us to be unfounded in fact. The proceedings must, therefore, be affirmed with costs. Opinion by Gilbert, J.; Mullin, P. J., and Smith, J., concurring. MARRIED WOMAN. LEASE. N. Y. SUPREME COURT. GEN. TERM. FOURTH DEPARTMENT. Eustapere, resp., v. Ketchem, et al. applts. Decided January, 1876. A married woman who signs a lease not for the benefit of her separate es· tate or business, and not containing a clause expressly charging her separate estate, incurs no liability. Her contracts not for the benefit of her separate estate are void. This action was brought to recover rent for a dwelling house rented to defendants, husband and wife. The lease for the premises contained certain covenants, and was signed by both the husband and wife. The house was occupied by defendants and their family. Defendants answer separately, and Mrs. Ketchem sets up that she was, at the time the lease was executed, and still is, a married woman, and that the same was not for the benefit of her separate estate, &c., &c. The judge, at the circuit, ordered a judgment for plaintiff. J. M. Humphrey, for applt. Held, That the common law disability of a married woman to make a personal contract remains, except as taken away by recent statutes. That the disability to make contracts taken away by recent statutes only ap plies to two classes, viz: Those which fendant, to recover from him a large relate to her separate estate or to her amount of diamonds, alleged by the separate business, and except as to such plaintiff to be of the value of $5,000 contracts made for herself, or for her benefit, her naked personal contracts, made for herself, or for or with her husband, are absolutely void, unless she expressly charges her separate estate. Plaintiff alleges, that on the 19th day of December, 1868, defendant filed his petition in the bankrupt court of the Eastern District of Arkansas, sitting at Little Rock, that he was duly That the husband was bound to supdeclared a bankrupt, and on the 14th port his wife and family, and the cove- day of June, 1871, received his disnants in the lease bound him only. The charge as such bankrupt. That the lease was not taken for Mrs. K., in her plaintiff was appointed assignee of separate business, or in any way for the said bankkrupt. benefit of her separate estate. It was the defendant filed his schedule of astaken by her husband to provide a home sets, he omitted from said schedule for his family, and Mrs. K. not having the following property, to-wit: 3 soliin such lease, or in any way expressly charged her separate estate with the payment of the rent under said lease, she is not liable. Judgment reversed. That at the time taire diamond studs, 1 cluster diamond ring and 1 pair of diamond cuff-buttons, all set in gold, valued at $5,000, That the defendant fraudently withheld these from the assignee. This suit in Opinion by Smith J.; Mullin P. J. equity is to set aside the discharge and and Gilbert J., concurring. SETTING ASIDE DISCHARGE IN recover the diamonds, or their value, for the benefit of creditors of this bankrupt. Suit was brought the 10th of June, 1874. Plaintiff alleges that he did not discover the fraud until July, 1872. Pickett v. McGarick. The plaintiff, among other things, Decided April, 1876. prays that the discharge of the deAlthough under the ordinary stat- fendant as a bankrupt be held void, utes of limitations, the rule is that and that the defendant be still responwhere the cause of action is based up- sible for his debts. To this bill in on fraud, the statute does not com- equity defendant sets up the plea of mence to run until it has become the statute of limitations, alleging in known to the party injured by the Fraud, still, as by section 34, of the said plea, that said supposed cause of bankrupt act, it is postively provided action in said complaint mentioned did that the discharge may be contested not accur ate any time within two years within two years after the date there next before the exhibiting of the bill of, this must be taken as the limit, of said plaintiff against the said deand the plea of the statute of limita tion is a good plea, in an action to set fendant in this behalf. aside a discharge as fraudulently ob tarned. Held, Section 34 of the bankrupt act provides, that any creditor of the This was a suit brought by the bankrupt may at any time, within two plaintiff as assignee in bankruptcy years after the date of the discharge, of the defendant, against the defen- japply to the court to set aside and amend the same, on the ground, that it was fraudently obtained. When did this cause of action first accrue in a case under this section; from the date of this discharge or the discovery of the fraud? Under the ordinary statutes of limitations, which provide that suits shall be brought at a specified time after the cause of action accrues, it has become a fixed rule, that where an action is based upon a fraud, the statute does not commence to run until it has be Decided January Term, 1876. First come known to the party injured by A check for twenty dollars, drawn on the fraud. Because it can well be said. that the cause of action did not accrue until the party could avail himself of a remedy to enforce that cause of action. and he could not do so until the cause of action was discovered. But this sectionis different from the ordinary statutes 'cf limitations. It postively provides that the discharge may be contested at any time within two years after the date thereof. That time must then be taken as the time when the cause of action accrues. From the language of the 34th section, and the general policy of the law, I am inclined to the opinion that Congress intended to limit the creditors in any case representing them to two years from the date of the discharge, in which they may seek to set it aside. This is the interpretation placed upon that section by all authorities. I am aware that a different construction was placed upon this section by Judge Taft, judge of the Superior Court of Cincinnati, in Perkins v. Gray, 3 N. B. R. 772, when he held that the discharge could be attacked at any time, and in any court for fraudulent concealment. But with all due respect to the learned judge, I think this is not good law. the First National Bank of Houston. was fraudulently altered and raised by the payee to two thousand dollars. It was purchased of him by J. & Co., who endorsed it to their agents, the City Bank of Houston, who presented it to the First National Bank, and it was by said bank pronounced good. In the usual course of business it was taken up by the First National Bank in the exchange of checks after bank hours. The City Bank thereupon gave J. & Co. credit for the amount. The forgery was not discovered until the next month, on the balancing of the accounts between the two banks. Held, That the National Bank was entitled to recover the amount from the City Bank as money paid under a mistake of fact. On This suit was brought by the First National Bank of Houston, to recover of the City Bank of Houston the sum of $1,980.00 alleged to have been paid by mistake. A brief history of the transaction will be necessary. February 19, 1872, the Texas Banking and Insurance Company of Galveston issued to a stranger, claiming the name. of D. J. Wallace, the following check; $20. THE TEXAS BANKING AND INS. Co. GALVESTON, February 19, 1872. Pay to the order of D. J. Wallace, in current funds, twenty dollars. 364. No. much cash. When the check was pronounced good, the City Bank gave Johns & Co. credit for the amount and notified them of the fact. ALPHONSE LAUVE, Cashier. To First National Bank, Houston. After its issuance this check was fraudulently altered, so as to read as follows: $2000. THE TEXAS BANKING AND INS. Co. GALVESTON, February 17, 1872. Pay to the order of D. J. Wallace, in current funds, two thousand dollars. No. 364. It was the custom of the Texas Banking and Insurance Company, and the First National Bank of Houston to transmit to each other, between the 1st and 3d of each month, an account current, showing the transactions between them for the preceding month. This account for February had been transmitted and received by the First National Bank, and entered up by its ALPHONSE LAUVE, Cashier. To First National Bank, Houston. In this altered condition the check book-keeper, before the presentation of was, on February the 25th or 26th pre- the check on March 6th, and showed sented to plaintiff, but the party pre-check No. 364 to be for $20, and of date senting failed to identify himself satis- February 19th, and of course did not factorily as the payee Wallace, and show any check corresponding to the payment was refused. At the time, one paid. On the 3d day of April, on Wallace was accompanied by Mr. the interchange of accounts for the Gray, assistant teller of the City Bank, month of March, the alteration of the who said: "This is Mr. Wallace, or a check was discovered, or at least susman of that name, who keeps an ac-pected, and after enquiry of, and hearcount with us that is under that name." This was deemed insufficient, and Gray refusing to endorse for him, payment was refused. ing from the drawer, was made known at once to the defendant, and the check was examined at this time by the officials of both banks, who detected no evidence of its having been altered. On or about March 4th, the altered check was purchased by C R. Johns & The facts seem only to have been fully Co., a banking firm at Austin, Texas, ascertained some days afterward, after of a party who was introduced to them a trip by the president of the National by a person known to them, as D. J. Bank to Galveston, made for the purWallace, and who in that name en- pose, and personal demand for the dorsed to them the check. They en- return of the money was not made dorsed it to their correspondent and until April 9th. The defences set up agent, the City Bank of Houston, for were, that the plaintiff had notice that the purpose of collection. On the no such check had been drawn on them morning of March 6th, the check thus at the time of the payment; that the endorsed was presented by the City check, prior to any endorsement by deBank to the National Bank, and was fendant, had been submitted to the by the latter pronounced good, and on plaintiff and pronounced by it to be the evening of that day, in accordance good, thereby virtually accepting the with the custom of these banks, the same, and that upon the faith of that City Bank endorsed the check and re- acceptation, defendant endorsed said ceived credit for the amount as so check, and credited their correspon |