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general denial. Defendant was rant, nor could defendant bave allowed to give evidence tending recovered for a conversion of propto show that plaintiff made the erty so sold. If a person by neg. first assault, and that plaintiff un- ligence, or intentionally, induces lawfully entered defendant's prem- another to act in a particular way, ises and possessed himself, as or in a particular capacity, he candistrict collector, of defendant's not afterwards be permitted to say goods, without having given the that the act was illegal. This case bond required by statute.
is quite different from one in which It appeared that plaintiff was the collector so situ
the collector so situated attempts district collector of a school dis. to collect of a third person who trict in which defendant resided had nothing to do with setting the and of which he was clerk, and collector in motion. that defendant made out the tax Plaintiff swears that he had postwarrant and delivered it to plain. ed the notices as required by tiff. Defendant testified, in effect, statute, thus becoming eniitled to that he acted for the trustee in so his percentage, and it is unnecesdoing. It did not appear that the sary to determine whether plaintiff amount of plaintiff's bail had been was bound to accept an order in fixed, or that the trustees required lieu of payment of the tax, for, if a bond, but it did appear that no he was, the order was insufficient bond had been given.
in amount to pay the tax and When called upon for the tax plaintiff's fees for collection, either defendant did not question plain- at one or five per cent. tiff's authority to act as collector, Judgment affirmed, with costs. nor did he when the levy was Opinion by Follett, J; Hardin, made and the affray occurred. P. J., and Merwin, J., concur.
The court charged that, for the purposes of this action, plaintiff
ALIMONY. SUPPLEMENT. was legally acting as collector.
N.Y. SUPREME COURT. GENERAL Held, No error; that defendant TERM. FOURTH DEPT. by making out the warrant and
Harriet E. Stevenson, applt., v. delivering it to plaintiff, set him William Stevenson, respt. in motion, and is not in a position
Decided Oct., 1884. to justify an assault on plaintiff for the purpose of preventing a The sums directed by a decree of divorce to collection of this tax by a levy on
be paid to piaintiff for her support and
maintenance may be reached by her credithis property, or to question plain
ors on supplementary proceedings and pay. tiff's right to act as collector. That
ment thereof by the defendant to a receiver the trustee would certainly have appointed in such proceedings discharges no right of action against the col. his liability therefor. lector had the collector sold the Appeal from that part of an ortrustee's property under the war der setting aside an execution.
recovered judgment that more than five years had against defendant in September, ela psed since the entry of the final 1855, granting her an absolute di- judgment and that leave had not vorce and adjndging that desend been granted for their issuance ; ant pay to plaintiff for her sup- and 2, that nothing was due on the port and maintenance during her judgment. life fifty dollars on each 5th day | The Special Term set aside the of January and July, and that execution for the collection of $50, plaintiff have “execution from and refused to set aside the one for time to time as often as said semi- $30. Defendant does not appeal. annual payments shall become
John Lansing, for applt. due and remain unpaid, as well as the remedy by attachment for any
Geo. F. Hooker, for respt. disobedience of this judgment.” Held, That the execution was
Defendant paid the said sums properly set aside. At common until July 5, 1883, when he paid law, since the statute of 13 Edw. plaintiff but $20 of the sum then I., all of a debtor's property, exdue.
cept necessary wearing apparel, Two judgments were recovered may be taken to pay the claims of against plaintiff in 1880 and exec- creditors ; so may all rights of acntions thereon were issued and tion arising from contract, and returned unsatisfied. In Septem- also judgments recovered for the ber, 1883, supplementary proceed wrongs of others. The exceptions ings were instituted on one judg. to this general rule exist solely by ment and defendant was examined virtue of the statutes of exemptions thereon. It appearing that he and no statute has been cited exowed plaintiff $30, an order was empting alimony or the separate made permitting him to pay said maintenance of a married woman. $30 to the sheriff in discharge of
It has been held that the sepasuch indebtedness, which he did, rate maintenance of a married wo. and said money was paid to the re man secured by her liusband, they ceiver subsequently appointed. In living apart, may be reached by a December, 1883, supplementary bill in equity by creditors of the proceedings were instituted on the wife. 1 Vern., 326 ; 1 Ves. Jr., other judgment and the receiver. 277; L. R., 1 P. & D., 254. It is ship was extended, and on Janu. difficult to see why the creditors ary 10, 1884, defendant paid to the bave not the same right to pursue receiver the $50 due January 5. a separate maintenance secured by
On the same day two executions judgment that they have to pursue were issued in favor of plaintiff one secured by deed. No case has against defendant; one to collect been cited or found in which this the $30 and interest, and the other precise question has been deterto collect $50 and interest.
mined, but remarks of judges in Defendant moved to set aside the reports may be found indicat . the executions, on the grounds, 1, ing that alimony and separate
maintenance stand on the same deed through a trustee, is exempt footing. See 5 Bing., 560 ; 7 Hill, under the sections of the code 213.
above quoted, thus changing the At the time the judgment was rule which existed before those entered and at the time the pro- sections, still those sections are not ceedings were had the statute broad enough to exempt alimony gave married women the absolute in which she alone is interested control of their separate estates, and arising from a judgment. and rendered them liable for their The $50 due January 5, 1884, debts. After judgment awarding was a debt. 15 Mass., 196. It was alimony plaintiff acqnires a vested but an incident resulting from the right to the sum which is not di- judgment, and is no more exempt vested by her re-marriage. 1 Hun, as property acquired after the en240 ; 58 N. Y., 644 ; 18 Hun, 466 ; try of the order than rent falling 80 N. Y., 156.
due on a lease for the life of and That the sums falling due under held by the debtor. It follows the judgment were not exempt that the receiver acquired title to from the claims of creditors, under these sums, and the payment of SS 1879, 2463, Code Civ. Pro. The them by defendant to the receiver trusts referred to therein are the discharged his liability, express trusts authorized by the Order affirmed, with costs. statutes. No property has been Opinion by Follett, J.; Hardin, set apart by a donor for a particu. P. J., concurs ; Merwin, J., not lar purpose; no property held by voting. a trustee from which the annual payments are derived ; a legal estate is not vested in one and an
FORECLOSURE. DEFICIENCY equitable estate in another, and no N. Y. SUPREME Court. GENERAL confidence is or has been reposed
TERM. FIRST DEPT. by any one in another. The judgment and the relation of the par
Joseph K. Riggs et al. v. Dion ties to it and to each other are in Boucicault et al. sufficient to create the semblance Decided Oct. 8, 1884. of an express trust. It might often
B. owned a mortgage on certain real estate prove a great hardship should a
which he assigned to R., guaranteeing its divorced wife be unable to procure
payment. R. subsequently foreclosed the credit on the strength of her judg. mortgage and the property was purchased ment for alimony, and quite as
at the foreclosure sale for a sum greater
than the mortgage debt. The purchaser, great a hardship to the creditor,
however, refused to complete lis purchase, who, having advanced money upon
and upon an application to compel him to the faith of the judgment, should do so, he was so ordered, or in default it be unable to enforce his demand. was ordered that the property be re-sold and While it may be that a separate
the purchaser charged with the deficiency
arising under such re-sale. Under this maintenance of a wife, living a part
order, R. re-sold the property and a large from her husband, secured by a deficiency arose upon such sale from the
payment of which the original purchaser of such deficiency when it has was relieved on account of irregularities been judicially declared, substanin the second sale. Held, That B. was not liable for such deficiency.
tially, that the premises had not
been sold according to law, and Appeal from an order relieving when the benefit of the first sale the defendant Boucieault from a of the premises, if carried out, judgment of deficiency upon fore- would have relieved defendant closure of a mortgage.
Boucicault from all liability, and The defendant Boucicault was the responsibility of the purchaser the niortgagee of certain property had been lost through the fault, in the city of New York, and he negligence and omission of the assigned his mortgage to plaintiffs, | plaintiffs themselves. at the same time guaranteeing its Order affirmed. payment. Plaintiffs subsequently Opinion by Brady, J. i Davis, bronght this action to foreclose P.J., concurred; Daniels, J., dissaid mortgage, and under a judg. sented, upon the ground that the ment of foreclosure and sale the purchaser at the first sale had property was sold to G. at a price been relieved by the Court of exceeding the mortgage debt. G., Appeals, 74 N. Y., 377, from the however, refused to complete his payment of the deficiency arising purchase, and thereupon a motion at the second sale, not on account to compel him to do so was made of any irregularity in such sale, upon which it was ordered that G. but on account of a defect in the complete his purchase, or in de title to the property, proof of fault that the property be sold and which they had not given upon B. be charged with the deficiency the application to compel them to arising under the re-sale. 66 N.Y., complete their purchase at the 193. Under this order the prop- first sale. erty was re-sold and a large deficiency arose upon such re-sale, but G. was relieved from the pay
STATUTE OF FRAUDS.
ACCEPTANCE. ment of such deficiency for the reason that in making the re-sale N.Y. SUPREME COURT. GENERAL the notice and terms of sale were
TERM. FIFTI DEPT. considerably varied from those at the first sale at which G. was a
In re assignment of De Witt C. purchaser, 74 N. Y., 377, and Hoover, for benefit of creditors. thereu pon plaintiffs entered Decided Oct., 1884. judgment against the defendant The acceptance necessary to take a verbal Boucicault for such deficiency.
contract out of the statute of frauds must R. D. Harris, for applt.
be manifested by some act distinct from A. J. D. Dittenhoefer, for respt.
and in addition to the words of the agreeHeld, That it would seem to be
ment, and mere receipt does not necessarily
prove acceptance. unjust to hold the defendant Boucicault responsible for the amount Appeal by L., a creditor of the
Vol. 20.–No. 8b.
assignor, from county judge's de- | attention of the assignee was not cree discharging the assignee. called to the offer. In a conver
The assignment was made Aug- sation with the assignee in April, ust 20, 1879, and in the course of 1881, appellant offered to take the the proceedings the county judge property in satisfaction of the $200 directed payment of the money in note, to which the assignee agreed. the assignee's hands to the cred. At that time appellant had the itors, pro rata, specifying the horse and harness in his possession. amounts to be paid them respec- He sold the wagon in September, tively. The amount specified for | 1880, for $75, and in July, 1881, he appellant was $281.28.
sold the horse for $140. This trial signee reported his execution of was had in December, 1881, and that order, and that the amount the court declared the note paid due appellant was paid by the and made its decree on the ground sale to him of a horse, wagon and that the oral agreement vested the harness in satisfaction of his note title to the property in appellant, of $200, and by tendering to him because he then had it in possesthe amount due on his note of sion, and that the subsequent sale $100, which was refused, where of the horse was made by him as upon the assignee had deposited owner, and constituted an accepthe amount with the county treas tance under the agreement of sale. urer to appellant's credit as di. E. B. Vedder, for applt. rected by the order, and had so Norris Morey, for respt. advised appellant. The latter pre Held, That the position of the sented an affidavit stating reasons court below cannot be supported. why he should be heard, and the Appellant's possession may have County Court directed a trial, obviated the necessity of any act which was had, and resulted in a of delivery by the assignee, further decree discharging the assignee, than recognition and assent by from which this appeal is taken. him of an act of acceptance by apIn September, 1879, the assignor pellant. Such acceptance was es. placed in appellant's hands a horse, sential to constitute a sale and wagon and harness to dispose of purchase, and it must have been and apply the proceeds in pay. manifested by some act as disment of the two notes, and appel tinguished from and in addition to lant received them for that pur- the words of the parties constitupose. This was with consent of ting the agreement. 47 N. Y., the assignor's mother-in-law, who 449 : 7 Am., 461; 57 N. Y., 211 ; owned the property. The assig. 65 id., 352; 22 Am., 619, and cases nee was informed of the transac- cited ; 61 N. Y., 1; 39 Md., 472 ; tion. In August, 1880, appellant 17 Am., 578. While acceptance offered to the assignor to give up includes receipt, the latter does to him the $200 note for the prop- not include the former, but may, erty, and the latter said he was under certain circumstances, be willing if the assignee was, but the evidence of acceptance. 120 Mass.,