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 managing directors, sought to This action could only be barred 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 of limitation, when no presump-pany, claiming that chap. 389 of the tion of payment arose. 5 Johns, 132; Laws of 1875, authorizes such leas? 11 Id., 168; 3 Id., 264; 13 Peters, 312; upon the assent of a majority of the 21 Barb., 593; 43 Id., 214; 37 Iow., stockholders. Such residence was not shown. 145. Judgment affirmed. An order was thereupon obtained for 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. CONTEMPT. N. Y. SUPREME COURT. GENERAL TERM. People ex rel Southworth v. Jacob Decided May 26, 1876. Efforts to induce stockholders to consent to a lease of portion of a company's property, is not a violation of an injunction, forbidding the exercise of corporate privileges or interference with company's property. Appeal from order refusing to pun· ish the defendant for an alleged contempt. The motion was denied on the ground that defendant's action was not such an intermeddling as the injunction contemplated. Sullivan, Kobbe & Fowler, for applt. Jno. M. Scribner & O. E. Bright, for applt. On appeal. Held, That we do not think the act complained of one for which the punitory power of the court should be invoked. It is consistent with an intention to observe and respect the order of this court. Order appealed from affirmed. Opinion by Brady J.; Davis, P. J. and Daniels, J., concurring. MARRIED WOMAN. ION IN WILL. PROVIS THIRD DEPARTMENT. In the two actions of Sistare v. The Bleecker Street and Fulton Ferry Railroad Company, and Harlowe, Trustee, &c., v. same, an order was entered on the 23d of December, 1875, practically N. Y. SUPREME COURT. GENERAL TERM. consolidating the two actions, appointing Alvan S. Southworth, the relator, Receiver in both actions, with full power for the conduct and care of the said railroad, and enjoining the railroad, its officers, agents, servants, &c., from the exercise of any of its corporate privileges, from intermeddling or otherwise interfering with its property until further order of this court. Decided May, 1876. A direction by a testatrix, a married woman, to each of her children to give a note for past services rendered, does not make the claim for such services a charge upon the estate. Action against executors for services. rendered their testatrix as housekeeper. CONTRACT. U. S. SUPREME COURT. V. I'laintiff when a child entered the ATTORNEY'S FEES. ILLEGAL family of the testatrix, a married woman, and lived there as a companion, receiving no wages as a servant. On Reuben Wright, plff. 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 services. She remained in the family until the death of the testatrix. testatrix, in her last sickness, expressed an intention to provide for plaintiff by will. The The husband failed in 1858. By will, made in 1971, the testatrix directed each of her children to give a note to the plaintiff "to be in full of her claims. for past services." An agreement between an attorney and his client, entered into after the ser vices have been rendered and are supposed to have been successful, that the attorney shall receive a per centage of the amount recovere i, is not an illegal contract. In error to the Supreme Court of the District of Columbia. Wright, the defendant below, was a licensed trader in the Choctaw country at the commencement of the rebellion. Her estate proved insolvent. The He 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 testatrix never carried on any legitimate business. The referee found for the defendants. Held, That the clause directing payment to the plaintiff did not charge the payment on her estate. It is rather an expression of the motive for the legacy, It does not designate for whom the services were rendered. If the testatrix became liable it must be because she entered into a contract in which she expressed her intention to charge her separate estate. The referee finds she never did this, and that she never, for herself, employed the plaintiff. This is the reasonable result from the evidence. Her intention seems to have been to make provision by will. This promise was performed. Judgment affirmed, with costs. Opinion by Learned, P. J.; Bockes and Boardman, J. J. concurring. taking and selling to the Indians of his goods and property, and for money advanced to the nation. By virtue of a treaty with the Choctaws and Chickasaws it was agreed that this claim with others should be referred to a commisand that such sum as should be found sion to be appointed by the President, due, should be paid out of any money belonging to the Indian nation in the Possession of the United States. (14 Stat. 781). He employed Tebbitts, the plaintiff below, an attorney at law, to present and prosecute his claim before this commission. Tebbitts accordingly appeared before the commission and presented an argument in support of the claim. Wright afterwards executed to Tebbitts a memorandum in writing as fol lows: "Jonas M. Tebbitts having rendered valuable services to me in securing my claims under the 50th article of the treaty of April 28th, with the Choctaws The commission which acted on this and Chickasaws, I hereby bind myself 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, with John B. Luce." Wright subsequently received $20,541.28. Tebbitts brought suit for $2, 054, being ten per cent. on the recovery. There was a judgment for this amount, from which the defendant took this writ of error, assigning as error that the contract was illegal. 1. Because it is an assignment of a on -tenth interest in the claim of Wright, and "not freely made and executed in the presence of at least two witnesses after the allowance of the claim, the ascertainment of the amount due, and the issuance of a warrant for the payment thereof," as required by the Revised Statutes, § 3477. 2. Because it is tainted with immorality and illegality and is against public policy. 3. Because it was champertous. Held, 1. There is no claim of any lien upon the fund. All that Tebbitts asks is that he be paid for his services after the money has een collected and in accordance with the agreement. 2. Tebbitts was not engaged in any improper or illegal service. He ap peared before the commission and presented an argument in behalf of his client. This is all he did or engaged to do. It was legitimate service rendered in a legitimate employment. Such services rest on the same principle of ethics as professional services rendered in a court of justice, and are no more exceptionable. 3. We have held in Wylie v. Coxe, 15 How., 415, that an agreement to pay a reasonable per centage upon the amount of recovery is not an illegal contract. In this case, after the services were rendered, and, as supposed, the claim had been secured, Wright agreed to pay ten per cent. of the amount eventually realized as compensation for the labor performed. We see no reason to find fault with this rule, which the parties established for themselves, as presenting the true criterion for estimating the reasonable value of the services. Judgment affirmed. FRAUDULENT ASSIGNMENT. CONSIDERATION. N. Y. SUPREME COURT. GEN'L TERM. THIRD DEPARTMENT. Stacy, receiver, respt. v. Gilbert Desham et. al., applts. Decided May, 1876. Evidence that the judgment debtor believed the note paid upon which judg ment was recovered, is competent upon the question of intent in an action to set aside an assignment by The value of the assigned property him as fraudulent. may always be shown. Services are a good consideration for such an assignment. Action by a Receiver in supplementary proceedings to set aside, as fraudulent, an assignment by defendant, Gil pur bert Desham, to one George Desham, a A legacy which is made payable upon co-defendant, of a contract for the chase of land. The answer denied the fraudulent intent. E. A. Chaffee, for respt. the happening of a certain event is a conditional one; and that event not happening, the legacy sinks into the residue. The testator by his will left to each of his younger sons the sum of £1,000 Held, That evidence that at the time which he charged upon his estate of the assignment Gilbert D. believed at A., but directed that said legacies the note (the same 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 recovered and the sup- the M. estate. He also devised his esplementary 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 intent to defraud. The value of the assigned property may always be shown as it is important on the question of fraud. Where the answer contains a general denial, except as admitted, only admits that the defendant slightly improved the premises while in his possession under the contract, and there is no allega tion in the complaint of their previous value, it is error to exclude evidence of value as inadmissible under the pleadings. Services rendered are a valuable consideration for such an assignment, and acceptance of property in payment of such debt is a valid transaction. Order denying motion for new trial reversed, the judgment set aside, and a new trial granted, with costs to abide the event. At the date of the will the M. estate was limited to the use of one Lady F. during her widowhood, with remainder to testator for life, with remainder to testator's eldest son, with remainder to his issue in tail male. The eldest son, subsequent to the death of testator, conveyed the estate at A. to plaintiffs who retained the amount of the legacies out of the purchase price, and who covenanted to pay said legacies when they became due, er if the younger sons should not become. entitled to the legacies, then to pay the amount thereof to the executors of said eldest son immediately after his death. Thereafter the eldest son died without having come into actual possession of the M. estate. The executors having commenced an action against plaintiff to recover the amount of the legacies under his cove Opinion 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 action. Held, The construction of the will is clear. The testator gives the estate at A. to his eldest son, and charges it with certain legacies. At the same time that he thus gives he qualifies his gift with a condition that it shall be of no effect unless his eldest son comes into actual possession of the M. estate In this case it is not in the first instance an absolute gift. In one sentence and with one breath he says, "I give £4,000, but I do not give it unless the M. estate comes into possession of my eldest son, who is owner of the A. estate." No sum can be raised or become payable until that event happens. No intention can be imputed to the testator other than that which he has expressed. No man with any knowledge of the English language could read this will in any other sense than that the gift is wholly conditional on the eldest son becoming owner of the M. estate, and that then, and not till then, these legacies were charged on the A. estate. Opinion by Bacon, V. C. STATUTE OF FRAUDS. N. Y. SUPREME COURT. GENERAL TERM Tisdell, respt. v. Morgan, applt. An agreement by which one creditor as- This arrangement was thereupon carried out. H. made the bill of sale, defendant's intestate verbally assumed plaintiff's debt, and plaintiff therefore released H. Some of plaintiff's debts were afterwards paid by freights receiv ed from H. under the same agreement, and this action was brought for the balance. There was judgment in the court below for plaintiff. J. A. & A. B. Steele, for applt. Held, That the agreement of defendant's intestate to assume and pay plaintiff's debt under the circumstances was valid and not within the statute of frauds. That although the complaint may not fully cover the case as proved on the trial, still the evidence having been received without objection, the complaint will be assumed by this court to have been am nded on the trial and disp. sed of accordingly. Judgment affirmed. QUESTION OF FACT. "and the other creditor releases the N. Y. SUPREME COURT. GENERAL TERM. debtor, is not within the statute of frauds. Although the complaint may not have covered case as proved, where the evidence is not objected to, the court on appeal will dispose of case as though the pleadings were amended on trial. Plaintiff and defendant's intestate were creditors of one II., and sometime in 1868, they both met H. in New York for the purpose of securing their debts. It was there arranged that defendant's intestate should advance to II. some cash and assume plaintiff's debt and take from H. a conditional sale of his canal boat. THIRD DEPARTMENT. Berry v. Jackson. Decided May, 1876. Where evidence is conflicting the court will not review a question of fact. Appeal from a judgment of the Fulton County Court affirming a judgment of a justice's court. This action was brought for the conversion of certain lumber sawed by the defendant from logs of plaintiff. The evidence was very conflicting. The defendant did not ask for a new trial in the County Court. |