76

The

sents.

LIMITATIONS.

In the application of these rules to this case we reach the conclusion that no fault is laid at the door of defendant. The machinery provided was adequate and the fact that it gave way under exceptional strain is not sufficient of itself to impose liability on defendant. If ordinary ingenuity has been exerted to the utmost to provide machinery and means for the endurance of the enormous strain imposed on it by railroad use, and when the best practicable inventions are utilized and the best human foresight exercised liability is escaped even though injuries are sustained. Responsibility follows the absence of care and ceases with its proper exercise. The same means are used to couple and hold together this engine and tender that have long been in use and found sufficient. They were all in position and in order and there is nothing disclosed on which a charge of negligence could be supported. fendant being without fault that will sustain an action there was nothing to submit to the jury.

De

Judgment affirmed, with costs. Opinion by Dykman, J.; Pratt,

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Havemeyer et al., exrs., applts., v. Quintard et al., respts.

Decided Sept., 1884.

In an action for money loaned, the court found that the cause of action, if any, accrued more than seven years before action brought and declined to find on plaintiff's request that it was a case of mutual accounts or reciprocal demands. Held, That the finding disposed of the case and that the action was barred by the statute of limitations.

Appeal from judgment directed by the court on a trial without a jury.

The appeal is brought on the judgment roll, plaintiff's request to find, the findings thereon and on plaintiffs' exceptions. The complaint alleged the loan of $90,000 by plaintiff's testator to C., the original defendant, in three sums at as many different times. Answer, general denial and statute of limitations.

The court found that the testator made and delivered to C. a check for $10,000, dated March 30, 1864; one for $50,000, dated April 21, 1864, and one for $30,000, dated April 30, 1864; that these checks were endorsed by C., deposited in bank to his credit and collected by the bank for his account, and that otherwise C. did not receive from testator the sums charged in the complaint.

He also found that whatever cause of action, if any, accrued to

H. against C. by reason of the matters found accrued more than seven and a half years before the action was commenced.

Plaintiffs claim that there were reciprocal demands and an open mutual account between testator and C., and so that the cause of action must be deemed to have accrued at the time of the last item proved on either side. All the facts on which they rely to estab lish reciprocal demands are included in their requests, Nos. 21 to 26. Under all but the 23d are the words

mencement of this suit and that finding must dispose of the case. For if it be, as plaintiff claims, a case of reciprocal demands there must be taken as a finding that the last item or demand was more than seven and a half years old. Judgment affirmed, with costs. Opinion by Dykman, J.; Pratt, J., concurs; Barnard, P. J., not sitting.

SHERIFF'S FEES ON ATTACHMENT.

and under the 23d are the words "found except the word mutual." After the last request are the findings without numbers: "I find the $90,000 has never been paid nor any part of it or allowed in any way. I find that the claim is barred by the statute of limitation and the defendants are entitled to judgment."

Held, No error; that all the facts relied on to establish reciprocal demands are either not found or found against plaintiff. The mutuality of the claims is distinctly repudiated; the finding that the claim is barred by the statute of limitation stands stands unimpeached and undisturbed. This action is not founded on mutual demands or on open account. It is for the recovery of money loaned, and there is no proof or finding of payment on account or acknowledgment of the debt.

We have nothing, therefore, against the finding that the cause of action accrued more than seven and a half years before the com

Vol. 20.-No. 6.

TERM. FIRST DEPT.

John Maxfield et al. v. Ann Taylor et al.

Decided Oct. 31, 1884.

The sheriff is not entitled to additional compensation for his trouble and expenses in taking possession of and preserving property scized under an attachment when the property attached consists of a debt owing to defendant and the attachment is made by serving a copy of the attachment with notice stating the seizure to the debtors. The sheriff is not entitled to charge a gross sum for making an inventory of property seized under an attachment. He must charge by the number of folios contained therein.

The sheriff has the right to bring an action for the recovery of a debt seized by him under an attachment and as incidental to that right he is entitled to be allowed the expenses incurred by him in the proceedings taken in that manner.

Appeal from an order adjusting and allowing sheriff's fees on the issuing and service of an attach

ment.

The attachment was served upon a debt owing to the defendants. The service was made by delivering a copy of the attachment with

notice of the seizure to the debtors. The items objected to were one of $15 as additional compensation under § 3307 of the Code Civ. Pro., for the trouble and expenses of the sheriff in taking possession of and preserving the property; one of $5 for making an inventory of the property attached, and one for costs and expenses of the sheriff in an action brought by him to reduce the debt levied upon to his possession. The last item was objected to upon the ground that a stipulation was entered into between the plaintiffs and the debtors by which the successful maintenance of such an action by the sheriff before the recovery of a judgment in this action was prevented. The sheriff, however, had not been notified of such stipulation or been requested not to institute the action which he did.

Henry D. Hotchkiss, for applts. Charles F. MacLean, for respt. Held, That since the sheriff in no manner obtained the possession or custody of the property seized he was entitled to no additional compensation for his trouble and expense in taking possession of and preserving the property under sub. 2 of 3307 of the Code. 12 Hun, 115.

That the allowance to the sheriff of a sum in gross for the making of an inventory has not been provided for by said section, and that the five dollars allowed therefor should be stricken out with liberty to the sheriff to charge according to the language of the section the fees allowed for making the inventory.

That since the sheriff had not been notified of the stipulation between plaintiffs and defendants' debtors, he was at liberty under § 655 of the Code to maintain an action for the recovery of the debt seized under the attachment, 23 Barb., 123; 32 Hun, 138; and as incidental to that right he was entitled to be allowed the costs and expenses incurred by him in the proceedings taken therefor. Ordered accordingly.

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

SURETIES.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

Max Hoffman et al. v. Isaac Steinau et al.

Decided Oct. 31, 1884.

A surety on an undertaking given by the plaintiff in a replevin action may be permitted, where that can be justly or equitably done, to protect himself by opening a judgment obtained against the plaintiff by default and prosecuting the action in the latter's name.

Whether the surety will be able to prosecute the action successfully or not is not a matter to be considered upon an application by him to be allowed to proceed with its prosecution.

This action was brought by the plaintiffs to replevy certain personal property. They subsequently failed to prosecute it and judgment was taken against them, by default, decreeing the return of the property. After the return of execution against them unsatisfied the defendants commenced an action against K., one of the sureties

Everett P. Wheeler, for pltff.
Samuel Jones, for deft.

Held, That the fact was established that the defendant took possession of the property as receiver under the lease executed to John H. McCann, and that rendered him liable as receiver for the rent accruing for the use and occupation of the premises until his removal therefrom by the summary proceedings. 93 N. Y., 609, 624; 9 Paige, 641, 644.

The defendant testified that the rents collected by him as receiver were not sufficient to enable him to pay the rent claimed by the plaintiff, but his testimony did not disclose the fact that he could not pay it out of the personal property committed to his custody by the order under which he was appointed.

Held, That as long as he had become liable for the rent he could not escape liability by the circumstance that the rent collected from the real estate was not sufficient to enable him to pay if he had any funds in his hands, whether derived from the real or personal property, which might be applied to its payment. 93 N. Y.. 6C9.

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The defendant also testified that, pending this suit, he had been discharged as receiver, but it was not made to appear that the plaintiff had notice of the application for

Held, That without such notice and the opportunity to present his claim for adjustment, the order discharging the defendant would be of no effect as to the plaintiff. That the defendant could not, without notice to the plaintiff, obtain an order for his discharge and then resist the right to recover rent by the fact that such an order had been made. 33 Hun, 164.

Verdict for defendant set aside and new trial ordered.

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

PROMISSORY NOTE.

N.Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Richard M. Raven et al., applts.. v. Eda Rubino et al., respts.

Decided Oct. 8, 1884.

The defendant, Eda Rubino, made her note for $5,000 chargeable upon her separate estate, and delivered the same to her husband, Eugene Rubino, solely for his accommodation and without any other consideration. Her husband endorsed said note and delivered the same to plaintiffs, who were stock brokers and who agreed to hold the same as margin or security, and to purchase, sell and carry stocks, &c., for said Eugene Rubino until said security or margin should be exhausted, and not to dispose of same until after they had demanded increased security or that said Rubino should take the stocks held for him at their market price. Subsequently plaintiffs sold the stocks, &c., held by them for Rubino without waiting for the security thus given to be exhausted, or giving him notice to increase it, and closed his account, and brought this suit upon the note to collect a balance alleged to be due