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before bequeathed in any increase Also held, That the words “

be most advantageous. The testa proven without any inventory ever tor gave his wife “$9,100, abso having been filed, and the receipt lutely, in lieu of dower," and of the income without accounting specified sums to other persons, to any one for over three years, and by a subsequent clause direc- fully justifies the action of the ted that said legatees be paid their court in respect to the direction shares in the same ratio as therein for a sale at once.

my or decrease on the sale of the real said legatees" did not include the and personal estate from the total legacy to the wife. Her legacy amount of said legacies.

was given for value. She could The executors have not sold or take the sum offered or go to the attempted to sell the property, but land for her right in that. It was conducted the milk business at the intended as an absolute gift in lieu same place that testator did in his of dower, and was to be paid to life time. No inventory has been free the land and estate if accepted. filed and there was no accounting Judgment modified accordingly. to any one for the income for over Opinion by Barnard, P. J.; three years. The court directed a Pratt and Dykman, JJ., concur. sale at once. The principal question presented by this appeal is whether a Court of Equity had

ATTACHMENT. power to direct or control the

N. Y. SUPREME COURT. GENERAL executors under such provisions

TERM. FIFTH DEPT. of the will in making a sale, and whether the words

Salie Frankel, respt., v. Ferlegatees” includes the legacy to dinand Hays, et al., applts. the wife.

Decided Jan., 1885. Winchester Britton, for applt.

Where an affidavit for an attachment is Charles S. Simpkins, for respt. properly made by an agent who personally

transacted the particular business with deHeld, That the use of the words

fendant and is acquainted with all the that the sale should be made by facts, a statement that the amount alleged the executors as soon as conveni

is due over and above all set offs, etc., ent after testator's death, "and

which defendant has against him," is suf

ficient. when in their judgment they shall The presumption is that the date of a note consider most advantageous,” did was the day of its delivery. not have the effect to render them An affidavit stated that defendants had a stock independent of the Court of Chan

of goods two and a half years ago worth

$40,000, and borrowed during that time cery. There are trusts in the will

$45,000; that they admitted to deponent which are always guarded with that they have been doing a not unprosper. jealous care by Courts of Equity, ous business; that their branch stores have and the judgment of a trustee is

been making money instead of losing; that

their stock has greatly diminished in quanalways subject to control. The

tity and value, and they say they cannot use of the property in the manner account for it, and have nothing to show for

Vol. 20.-No. 18a,

my said


it; that they are insolvent; and that one of of August, 1881, and took defenddefendants proposed a schenie for the pur. ants' promissory notes as security, pose of defrauding certain creditors of the firm. Held, sufficient, in the absence of payable one day after date to the denial or explanation. The affidavit need order of plaintiff. not state that an action has been com. It was objected that the date of

the note does not appear,

That Appeal from order denying mo- there was no presumption that it tion to dissolve an attachment. bore a date at or before its delivery, The niotion was made upon the and there can be no inference that papers upon which the attach- the note became due before the ment was granted.

affidavit was made, Aug. 7, 1884. The affidavits were made by Held, That as in the usual course Ignatz Thalheimer, who described of business a note is dated, the himself as the person who trans- presumption is that it was de acts the business of plaintiff, livered on the day of its date, if it loaned the money to defendant, is dated, and if it bears no date the and who has personal knowledge converse presumption arises that of all the facts, and that plaintiff its true date is the day of its dehas no personal knowledge in re- livery. Edwards on Bills, 150; 32 gard to any of the matters alleged. Ind., 375. The date of a bill is its The indebtedness arose upon prom- delivery, and where there is no issory notes given for money date it operates from delivery. loaned, which were set out in the 2 Chitty, 300. affidavit, followed by the state The next objection made to the ment that plaintiff “ has a good affidavits was, that they did not cause of action upon each and show that defendants have disevery of the notes before men- posed of or secreted, or are about tioned, and to recover the full to dispose of or secrete their propamount of money hereinbefore erty to defraud creditors. mentioned, over and above all set The statement was substantially offs, discounts, and counterclaims that defendants, two and a half which the defendants have against years ago, had a stock of goods her."

worth $40,000; that they borrowed It was objected that this part of during that time $45,000, of which the affidavit should be made by $20,000 was borrowed from plainplaintiff herself, and that the omis- tiff ; that they have admitted to desion of the words “known to her” ponent that they have been doing a is fatal.

not unprosperous business; that James Breck Perkins, for applts. their various branch stores have

been making, and not losing J. Q. Van Voorhis, for respt.

money; that the stock of goods has Held, That the objection made greatly diminished in quantity and was not tenable. 27 Hun, 517. value, and that they have no way

The affidavit stated that plaintiff to account for it and nothing to loaned the money on the 4th day I show for it; that they are insolvent;


and that being so, one of the part- | ATTORNEY. JURISDICTION. ners has proposed to go into a

N. Y. SUPREME COURT. GENERAL scheme for the purpose of defraud

TERM. SECOND DEPT. ing certain of the creditors of the firm. These facts were not denied

Josiah H. Burton, respt., v. Anor explained.

toinette W. Sherman, impld., Held, sufficient, in the absence applt. of denial or explanation. They Decided Dec., 1884. show that one of the firm at least

There is no distinction between a forged nohas the intent to cheat his credit

tice of appearance and a notice really given ors, and that the goods have dis

by an attorney not authorized to give it, appeared at a more rapid rate than and jurisdiction is not acquired in either could be accounted for by their legitimate business. This last fact Appeal from order denying moalone, unexplained, was held suf- tion to vacate a judgment of foreficient to uphold an attachment in closure and sale, as to Antoinette 14 W. Dig., 285. The Court hela W. Sherman, on the ground that that those facts were enough to the court never obtained jurisdicput defendants to their answer, tion. No summons or any other and in the absence of opposing notice was served on the appellant. proof were enough to sustain the The husband of appellant appearattachment. This case is plainer ed in the action by attorney, and than that case, and the inference the same attorney appeared for of fraud is stronger. As long as appellant, but he was never redefendants do not choose to deny tained or authorized to appear for or explain the facts shown by the her. She had no knowledge of plaintiff, they must be subject to such appearance, or of any of the the inferences fairly to be drawn proceedings, until after the sale. from those facts, and those infer- Her interest in the property was ences require the Court to assume her inchoate right of dower in the the existence of fraud as charged. equity of redemption which was

It was objected that the affidavit owned by her husband. There does not show that an action has was no averment that the attorney been commenced.

is irresponsible. Held, that the fact must exist, L. E. Gilbert, for applt. but it need not be stated in the E. A. Brewster, for respt. affidavits.

Held, That appellant was not Order affirmed on opinion of bound by the judgment. In the . Rumsey, J., at Special Term. case of Ferguson v. Crawford, 86

Haight, Bradley, Angle and N. Y., 609, the Court of Appeals Childs, JJ., concur.

beld that a forged notice of appearance by an attorney did not give jurisdiction of the person of the defendant, although it was recited in the judgment that the

party appeared, and the judgment

OLEOMARGARINE. was collaterally attacked for lack of jurisdiction.

N.Y. SUPREME COURT. GENERAL There can be no distinction

TERM. SECOND DEPT. drawn between a forged notice of appearance and a notice really H. McGann, applt.

The People, respts., v. Patrick given by an attorney not authorized to give it. The notice of ap Decided Dec., 1884. pearance in neither case reaches the prohibition contained in § 6 of Chap. the party.

This application is 202, Laws of 1884, is not confined to cases made in the action itself, and it of deception in the manufacture and sale appears that the appellant has of the article prohibited, but is absolute. never been brought in. No juris- Said section is not unconstitutional. diction has been acquired over her, Appeal from judgment of County even if it be assumed that the at. Court, affirming conviction of de. torney was responsible; while for fendant for manufacturing and reasons of public policy regularity selling oleomargarine in violation is assumed, which is based upon of $ 6, Chap. 202, Laws of 1884. an appearance of an attorney of That section provides that “No the court, jurisdiction ceases to be person shall manufacture out of assumed when when the

papers on any oleaginous substance or subwhich it stands are destroyed. The stances or any compound of the responsibility of the attorney does same, other than that produced not help to make a case of juris- from unadulterated milk or of diction over a person if the attor cream from the same, any article ney has no power to confer it. The designed to take the place of butcases cited to show that a husband ter or cheese produced from pare may employ an attorney for his unadulterated milk or cream of wife without service upon her of the same, or shall sell or offer for the summons have no longer any sale the same as an article of food.” weight. She now has rights to It was proved that defendant protect and to hold ; that an in- manufactured what is called oleochoate rigbt of dower is not one of margarine from an oleaginous subthem is against the current of au- stance other than that produced thority. A wife not served has from milk or cream ; viz., anithe right to set aside a judgment | mal oil extracted from the tallow against her in such an action. 59 of beef; that this article is manuN. Y., 629.

factured for sale as a substitute Order reversed.

for butter; that it resembles butOpinion by Barnard, P. J.; ter so much in appearance and Dykman, J., concurs; Pratt, J., taste that it may be taken for butdissents.

ter by any ordinary person and [The appeal from this order was that it was designed by defendant dismissed in Court of Appeals, to take the place of butter as an Jan. 27, 1885.—ED.]

article of food and a substitute

therefor ; that he has sold about condemnation of the constitution 8 pounds of this article as oleo- it is because it offends against this margarine with the design that it limitation of legislative power. should be used for food as a sub- This constitutional restriction has stitute for butter ard that the received exhaustive examination purchaser knew how it was made in 13 N. Y., 378, and 74 id., 509, and of what it was composed and and in both of these cases the conbought it for such use as afore- clusion was reached that notwithsaid.

standing such restriction the legDefendant claims that the sec- islative power extends to the ention was intended only to apply to tire prohibition of the traffic in a case of deception in the manu- spiritnous liquors. This doctrine facture and sale of the article proceeds on the theory that the specified.

legislature may prohibit and supHeld, Untenable. The language press any traffic injurious or de. employed will not admit of that moralizing either to public health mild interpretation. It prohibits or public morals or in its tenden. both the manufacture out of any cies or consequences; and that the oleaginous substance except that conclusion and decision of the legproduced from milk or cream of islature on the question of fact any article designed to take the involved is final and conclusive. place of butter or cheese produced See also 16 Wall., 36. These cases from milk or cream ; and also the are sufficient to sustain the consale or offer for sale of the same stitutionality of the law under as an article of food. The pro- consideration. hibition, so far as it extends, is It must be assumed in the conabsolute, and if the legislature sideration of this statute that the possessed the power to make the legislature ascertained that the law it must be respected and en use of this prohibited article was forced.

injurious and detrimental to the Without constitutional limita- public and so found it necessary tions the power of the legislature to advance in respect to the same to make laws would be absolute, beyond the point of regulation to because the law-making power is actual prohibition. The presumpentrusted by the people to the tion is that such legislative action legislative branch of the state gov- was deemed necessary for the ernment. But the people have set welfare of the public and it cancertain limitations to the law. not be abrogated by the courts. making power, some of which are with these necessary assumpexpress and some are implied ; tions this law falls easily within one of the express limitations is the police power of the state ; that no person shall be deprived which is a power vested in the of life, liberty or property without legislature to ordain such laws due process of law. If, therefore, and ordinances as shall be deemed the law in question falls under the essential and necessary for the

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