Imágenes de páginas

and cannot be allowed to control the Thereafter the defendant in these proceedings in this State for the collec- proceedings, who is one of the comtion of the judgment.

pany's m:quaging directors, sought to This action could only be barreil by gai the consent of several of the shareshowing that the defendant had resided holders of said company to a lease of here the length of time required by our a portion of the property of said comstatute ot limitation, when no presump- pany, claiming that chap. 389 of the tion of payment arose. 5 Johns, 132; Laws of 1875, anthorizes such lease 11 Id., 168; 3 Id., 264; 13 Peters, 312; upon the assent of a majority of the 21 Barb., 593 ; 43 Id., 214; 37 IIow., stockholders. 145. Such residence was not shown. An order was thereupon obtained for Judgment affirmed.

defendant to show cause why he should Opinion by Daniels, J.; Davis, P. not be punished for a violation of the J., and Brady, J., concurring. said injunction.

The motion was denied on the ground

that defendant's action was not such CONTEMPT.

an intermeddling as the injunction conN. Y. SUPREME Court. GENERAL TER). templated. FIRST DEPARTMENT. ·

Sullivan, Kobbe & Fowler, for applt. People ex rel Southworth v. Jacob

Jno. M. Scribner & 0. E. Bright, Sharpe.

for applt. Decided May 26, 1876.

On appeal. Efforts to induce stockholders to consent

dell, That we do not think the act to a lease of << portion of a company's complained of one for which the puniproperty, is not a violation of an injunction, forbidding the exercise of tory power of the court should be incorporate privileges or interference voked. It is consistent with an intenwith company's property.

tion to observe and respect the order of Appeal from order refusing to pun.

this court. islı the defendant for an alleged con Order appealed from affirmed. tempt.

Opinion by Brad; J.; Davis, P. J. In the two actions of Sistare v. The and Daniels, J., concurring. Bleecker Street and Fulton Ferry Railroad Company, and IIarlowe, Trustee, MARRIED WOMAN. PROVIS. &c., v. same, an order was entered on

ION IN WILL. the 23d of December, 1875, practically N. Y. SUPREME Court. GENERAL Teru. consolidating the two actions, appoint

THIRD DEPARTMENT. ing Alvan S. Southworth, the relator,

Eisenlord v. Snyder et. al., exrs. Receiver in both actions, with full

power for the conduct and care of the said

Decided May, 1876. railroad, and enjoining the railroad, its A direction by a testatrix, a married officers, agents, servants, &c., from the

woman, to each of her children to exercise of any of its corporate privi

give a note for past services rendered,

does not make ihe claim for such leges, from intermeddling or otherwise services a charge upon the estate. interfering with its property until fur Action against executor; for services ther order of this court.

rendered their testatrix as housekeeper.


Plaintiff when a child entered the ATTORNEY'S FEES. ILLEGAL family of the testatrix, a married wo

CONTRACT. man, and lived there as a companion, U. S. SUPREME COURT. receiving no wages as a servant. On

Reuben Wright, piff. in error arriving at full age, in 1849, she was Jonas M. Tebbitts, deft. in error. (Oc told by the testatrix and her husband

tober, 1875). that she should be rewarded for her

An agreement between an attorney ana services. She remained in the family

his client, entered into after the ser. until the death of the testatrix. The vices have been rendered and are testatrix, in her last sickness, expressed Supposed to have been successful, that an intention to provide for plaintiff' by the attorney shall receive a per cenwill.

tage of the amount recovere i, is not

an illegal contract. The husband failed in 1858. By will, made in 1971, the testatrix directed each

In error to the Supreme Court of the

District of Columbia. of her children to give a note to the

Wight, the defendant below, was a plaintiff "to be in full of her claims

licensed trader in the Choctaw country for past services."

at the commencement of the rebellioa. Her estate proved insolvent. The le claimed to have sustained heavy devisees and legatees did not accept losses during the war by the use by and the devises and legacies. The testa- taking and selling to the Indians of his trix never carried on any legitimate goods and property, and for money adbusiness.

vanced to the nation. By virtue of a The referee found for the defendants. treaty with the Choctaws and ChickaD. S. Morrell, for plff.

saws it was agreed that this claim with S. W. Jackson, for defts.

others should be referred to a commislleu, That the clause directing pay and that such sum as should be found

sion to be appointed by the President, ment to the plaintiff did not charge the

due, should be paid out of any money payment on her estate.

It is rather an expression of the motive for the legacy. belonging to the Indian nation in the It does not designate for whom the possession of the United States. (14

Stat. 781). services were rendered.

If the testa

He employed Tebbitts, the plaintiff trix became liable it must be because she entered into a contract in which she below, an attorney at law, to present

and prosecute his claim before this comexpressed her intention to charge her

mission. Tebbitts accordingly appearseparate estate. The referee finds she

ed before the commission and presentnever did this, and that she never, for

ed an argument in support of the herself, employed the plaintift.

claim. This is the reasonable result from the

Wright afterwards executed to Tebevidence. Her intention seems to have bitts a memorandum in writing as folbeen to make provis on by will. This

lows : promise was performed.

“ Jonas M. Tebbitts having rendered Judgment affirmed, with costs. valuable services to me in securing my

Opinion by Learned, P. J.; Bockes claims under the 50th article of the and Boardman, J.J. concurring. treaty of April 28th, with the Choctaws

and Chickasaws, I hereby bind mysef The commission which acted on this to pay him one-tenth of whatever I may claim was in fact a quasi court. There realize from the Choctaw Indians under is nothing illegal, immoral, or against said article whenever the money comes public policy in a professional engageinto my hands, which payment, when ment to present and prosecute such made, will be in full compliance with claims before such tribunals. my verbal contract, made in April last, 3. We have held in Wylie v. Coxe, with John B. Luce."

15 How., 415, that an agreement to Wright subsequently received $20,- pay a reasonable per centage upon the 511.28. Tebbitts brought suit for $2, amount of recovery is not an illegal 05t, being ten per cent on the recove- contract.

In this case, after the services were ry. There was

a judgment for this rendered, and, as supposed, the claim amount, from which the defendant had been secureu, Wright agreed to took this writ of error, assigning as er- pay ten per cent. of the amount eventror that the contract was illegal.

ually realized as compensation for the 1. Because it is an assignment of a

labor performed.

We see no reason to find fault with on -tenth interest in the claim of Wright, and “not freely made and ex

this rule, which the parties established ecuted in the presence of at least two for themselves, as presenting the true witnesses after the allowance of the criterion for estimating the reasonable

value of the services. claim, the ascertainment of the amount due, and the issuance of a warrant for

Judgment affirmed. the payment thereof,” as required by

Opinion by Waite, C. J. the Revised Statutes, $ 3+77. 2. Because it is tainted with immor

FRAUDULENT ASSIGNMENT. ality and illegality and is against pub

CONSIDERATION. lic policy. 3. Because it was champertous.

N. Y. SUPREME COURT. GEN'L TERM. del, 1. There is no claim of any

THRD DEPARTMENT. lien upon the fund. All that Tebbitts Stacy, receiver, respt. v. Gilbert Desasks is that he be paid for his services ham et. al., applts. afier the money has ! een collected and Decided May, 1876. in accordance with the agreement. Evidence that the judgment debtor be

2. Tebbitts was not engaged in any lieved the note paid upon which judg. improper or illegal service. He ap ment was recovered, is competent peared before the commission and pre upon the question of intent in un ac.

tion to set aside an assignment by sented an argument in behalf of his client. This is all he did or engaged The value of the assigned property

him as fraudulent. to do. It was legitimate service rend

may always be shown. ered in a legitimate employment. Such Services are a good considerution for services rest on the same principle of such an asignment. ethics as professional services rendered Action by a Receiver in supplemenin a court of justice, and are no more tary proceedings to set aside, as frauduexceptionable.

llent, an assignment by defendant, Gil


bert Desham, to one George Desham, a A legacy which is mude payable upon co-defendant, of a contract for the pur the happening of a certain event is a chase of land. The answer denied the

conditional one; and that event not fraudulent intent.

happening, the legacy sinks into the

residue. E. A. Chaffee, for respt.

The testator by his will left to each Swift & Sanford, for applts.

of his younger sons the sum of £1,000 Ileld, That evidence that at the time which he charged upon his estat: of the assignment Gilbert D. believed at A., but directed that said legacies the note (the saine being an accommo- should not be paid until his eldest son dation note) was paid, on which the should come into actual possession of judgment was r. covered and the sup- the M. estate. He also devised his plementary proceedings instituted, was tate at A. in fee, subject to these legaimproperly excluded. It might have cies, to his eldest son. some influence on the question of the At the date of the will the M. estate intent to defraud.

was limited to the use of one Lady F. The value of the assigned property during her widowhood, with remainder may always be shown as it is important to testator for life, with remainder to on the question of fraud.

testator's eldest son, with remainder to Where the answer contains a general his issue in tail male. denial, except as admitted, only admits

The eldest son, subsequent to the that the defendant slightly improved death of testator, conveyed the estate the premises while in his possession un- at A. to plaintiff's who retained the der the contract, and there is no allega amount of the legacies out of the purtion in the complaint' of their previous chase price, and who covenanted to pay value, it is error to exclude evidence of said legacies when they became due, or value as inadmissible under the plead- if the younger sons should not become ings.

entitled to the legacies, then to pay the Services rendered are a valuable con- amount thereof to the executors of said sideration for such an assignment, and eldest son immediately after his death. acceptance of property in payment of Thereafter the eldest son died withsuch debt is a valid transaction.

out having come into actual possession Order denying motion for new trial of the M. estate. reversed, the judgment set aside, and a The executors having coinmenced ar. new trial granted, with costs to abide action against plaintiff to recover the the event.

amount of the legacies under his coveOpinion by Learned, P. J.; Board- nant, he filed this bill to ascertain who man, J., concurring.

were entitled to said amount, and to restrain further proceedings in the said


leld, The construction of the will is ACY.

clear. The testator gives the estate at ENGLISH HIGH COURT OF JUSTICE.

A. to his eldest son, and charges it CHANCERY DIVISION.

with certain legacies.

At the same Taylor v. Lambert.

time that he thus gives he qualities his Decided March 9, 1876.

gitt with a condition that it shall be of

no effect unless liis eldest son com; This arrangement was thereupon care into actual possession of the M. estate ried out. II. made the bill of sale, deIn this case it is not in the first instance fendant's intestate verbally assumed an absolute gift. In one sentence and plaintiff's debt, and plaintiff

' therefore with one breath he says, “ I give £4,000, released H. Some of plaintiff's debts bu: I do not give it unless the M. es- were afterwards paid by freights receivtate comes into possession of my eldest ed from H. under the same agreement, son, who is owner of the A. estate.” and this action was brought for the No sum can be raised or become paya balance. ble until that event happens. No in There was judgment in the court betention can be imputed to the testator low for plaintiff'. other than that which he has expressed. J. A. & A. B. Steele, for applt. No man with any knowledge of the J. J. Duddelston, for respt. English language could read this will

Tield, That the agreement of dein any other sense than that the gift is fendant's intestate to assume and pay wholly conditional on the eldest son be- plaintiff's debt under the circumstances coming owner of the M. estate, and

was valid and not within the statute oí that then, and pot till then, these leg- frauds. cies were charged on the A. estate.

That although the complaint may Opinion by Bacon, V. C.

not fully cover the case as proved on

the trial, still the evidence having been STATUTE OF FRAUDS.

received without objection, the comN. Y. SUPREME Court. GENERAL TERM plaint will be assumed by this court to FOURTH DEPARTMENT,

have been am nded on the trial and Tisdell, respt. v. Morgail, applt. disp. sed of accordingly. Decided April, 1876.

Judgment affirmed.

Opinion by Noxon, J. An agreement by which one creditor as.

sumes the debt of another creditor and takes security from their debtor

QUESTION OF FACT. for his own debt and the one assumed, "and the other creditor releases the N. Y. SUPREME Court. GENERAL TERM. debtor, is not within the statute of


Berry v. Jackson. Although the complaint may not have

covered case as proved, where the evi Devided May, 1876. dence is not objected to, the court on Where evidence is conflicting the court cppeal will dispose of case as though will not review a question of fact. the pleadings were amended on trial.

Appeal from a judgment of the FulPlaintiff and defendant's intestate ton County Court affirming a judgment were creditors of one fI., and sometime of a justice's court. in 1868, they both met II. in New York

This action was brought for the confor the purpose of securing their debts. version of certain lumber sawed by the It was there arranged that defendant's defendant from logs of plaintiff. The intestate should advance to II. some cash and assume plaintiff's debt and evidence was very conflicting. The de. take from H, a conditional sale of his fendant did not ask for a new trial in canal boat.

the County Court.

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