relation thereto, keeps a bank account in her own name, and either herself or by her authorized agent draws a check thereon, post dated, on which she borrows money, the presumption is that the money was borrowed for her separate estate and business. Appeal from judgment entered on report of referee. is not apparent how that circumstance affects the principle enunciated in the the case cited. In either case the contract actually made between the parties by which the defendant acquired possession and control of the property is made to prevail rather than a contract which was not within the intention of the plaintiff, and probably not within the Defendant is a married woman ownintention of the agent of the defendant, ing real estate in Westchester county, and which was made by carelessness or and in New Jersey, as her separate esmistake. This verdict might stand if tate, which were managed by her husthe bill of lading had been delivered band, acting as her agent. She had simultaneously with the delivery of the duly authorized him, by a power of atproperty, if the jury was satisfied of torney, "to make, sign, endorse, or the mistake. Long v. N. Y. C. R. R. Co., 50 N. Y. 76. The parol agreement is the agreement under which the parties acted. By what right, then, can the defendant, without express evidence of assent on the part of the plain- from the plaintiff his check for $500, tiff, change such contract so as to ex-payable to Mr. Mitchell's order, which empt it from a duty and liability expressly contracted for? Courts do not favor the doctrine of merger, when it would violate the intention of the parties and work injustice. Wilbeck v. Waine, 16 N. Y. 532. Motion for a new trial denied and judgment ordered for the plaintiff on the verdict, with costs. Opinion by Boardman, J.; Learned, P. J., concurs; Bockes, J., takes no part. MARRIED WOMAN. CHARGING N. Y. SUPREME COURT. GENERAL TERM, Charles W. Nash, respt. v. Isabella Decided Got. 13, 1876. Where a married woman having a separate estate and carrying on business in accept checks, notes, drafts, and bills of exchange," for her and in her name; and he was accustomed to receive and and disburse money for her estate. On November 4, 1872, he received. was endorsed by him and paid. Mitchell gave in exchange therefor a check for the same amount, on the Central Bank of Westchester county, post dated Nov. 9th, 1872, and signed “I. H. Mitchell, by C. H. Mitchell, att'y." At the time of the making of said check defendant had an account in said bank, and had previously deposited with the cashier her husband's power of attorney. The check was, at maturity, presented for payment, which was refused, and it was duly protested. And this action was thereafter brought to recover the value of the same. The cause was referred. The ref eree found and reported that the check had been drawn by defendant's husband as her agent; that it was drawn upon her separate account and for the benefit of her separate estate; that she was then carrying on business in her own name for her own benefit, her husband On appeal, SECOND DEPARTMENT. Philip V. R. Stanton, respt., v. Elizabeth R. B. King, impl'd, &c., applt. Decided June, 1876. Held, That the finding of the learned N. Y. SUPREME COURT. GENERAL TERM. referee that in the giving and exchange of checks, defendant's husband acted as her agent, and the power of attorney given him was broad enough in its language to justify such finding, seems to put the case upon the same ground as though the defendant, being a married woman, had herself made the post dated check, and received in return plaintiff's check. 8 Hun. 4. A cestui que trust is not a necessary party to an action against the trustees to recover for services rendered, nor individually liable therefor. Trustees may use the funds for legal purposes, but cannot bind the estate by any executory contract. Action for legal services rendered to Jas. C. Hays, for applt. Held, That trustees may use the funds of the estate for legal purposes. They cannot bind the estate by any exAustin v. Munroe, ecutory contract. Assuming, then, that she gave the check, it cannot be said that she made herself liable upon it by thereby charging her separate estate; because the and moneys expended for the estate. Decheck being post-dated, it was in its na-murrer by defendant King on the ture an executory contract payable at a ground of misjoinder of parties, &c. future day, and not an instrument drawn The demurrer was overruled and defendant appeals. upon an existing and specific fund payable presently. The case, then, turns upon the question whether the transaction can be deemed one made by her, for the benefit of her separate estate, or for her separate business. Where a married woman has a separate estate, carries on business in relation thereto, 47 N. Y. 360; Ferrin v. Myrick, 41 keeps an account in bank in her own N. Y. 315. name, and draws a check thereon payable at a future day, on which she bor-action set forth against defendant King. rows money, the legal presumption, in our opinion is that the money was borrowed for the benefit of her separate estate and business, and that a liability arises against her, unless she shows affirmatively that the money was not obtained for the benefit of her separate es-the will of the deceased. tate or business, and the fact that the business was transacted by her authorized agent, makes no difference with her liability Also held, that there is no cause of She is not a necessary party to an action against the trustees to recover a balance of a claim for services rendered, nor is she individually liable to plaintiff for any portion of his claim by reason of her receipt of property under Order overruling demurrer reversed, and demurrer sustained with costs. Opinion by Barnard, P. J.; Gilbert, J., concurring. SURETY foreclosure case were received in evi N. Y. SUPREME COURT. GENERAL TERM.dence to show the amount of the mort FIRST DEPARTMENT. Sylvester W. Comstock, plff. v. Hellen E. Drohan, deft. Decided Oct. 13, 1876. Grantee, taking premises subject to mortgage is, as to the mortgage, the principal debtor, the grantor being a sure ty. Where surety is sued and pays obligation he may recover of principal the amount paid, deducting costs and expenses. Motion by defendant for a new trial on exceptions ordered to be first heard at General Term. gage debt, the sale of the property, and the account of the deficiencies, defendant objecting that she had had no notice of that action, and was not a party to it. Defendant insisted that the costs and expenses in the foreclosure action should F. H. Comstock, for plaintiff. Held, That defendant was, as to the mortgage debt, primarily as well as personally liable for the payment of the And as to her the plaintiff consame. On or about the 28th of March, 1859, plaintiff sold to defendant a certain piece of property, subject to a mortgage then on said property, which defendant tinued liable for it only as her surety. agreed to assume and pay as a part of 24 N. Y., 178; 44 Barb., 336; 52 the purchase price of said property, Id., 396. The statute declaring that and such agreement was incorporated no proceedings whatever should be had in the deed to defendant. at law for the recovery of a debt secured The mortgage not being paid was by mortgage, unless authorized by foreclosed, all the parties in interest the court, after a decree had been being made defendants except the de- rendered in the foreclosure suit (2) fendant herein. A deficiency of over R. S. Ed'n. Ed., 199, § 153), has no $800 appearing after the sale, plain- application to an action upon a covetiff, to prevent a judgment for the same nant of the nature of that contained in being entered against him, paid it, and the deed to defendant, by the grantor, now looks to defendant for remunera- after paying the deficiency. tion. Defendant's counsel moved to dismiss the complaint on the ground that the plaintiff does not show himself to be in a position to sue for and recover any deficiency upon the foreclosure suit, or that he has any right to the money upon this mortgage without placing defendant in a position whereby she could have the benefit of the mortgage, which motion was denied under exception. The proceedings and judgment in the Defendant agreed to pay off the mortgage debt, and by necessary implication to indemnify him against the legal consequence of her failure to perform the agreements. When she failed to pay and it was paid by him on the judgment recovered against him for the deficiency, it was so much money paid by him for her use and which he was entitled to recover against her. The statute was never designed to reach a case of this kind, but to limit the party pros ecuting an action to foreclose the mort-vember 26, 1875, they filed their petigage to that proceeding unless good tion for a meeting of creditors, to encause be shown for relief from the statu-able them to offer terms of composition tory restraint. under the seventh section of the Act of The receipt of the judgment in evi- June 22, 1874. The meeting was ordence was proper, nor was notice to de-dered, and the composition entered into fendant of that action essential, for she December 10th, 1875, by which they was bound to indemnify him against the were to pay forty cents on the dollar, legal results to him of her default. cash, in two instalments of twenty per cent. cach, one payable March 1, 1876, the other, May 1, 1876; the payment thereof to be secured by the mortgage of Joseph L. Lytle and his mother, Isabel Lytle, on all the real estate of the said Joseph L. Lytle, in the 23d Ward of the city of Pittsburg, to Thomas T. Wightman, in trust for the creditors. For when one person has become obligated to protect another against the consequences of his or her default, a judgment regularly recovered against the party entitled to such protection is prima facie evidence of the fact established by it in his favor in an action against the person bound to make the indemnity. 34 N. Y., 275, 279-81. The costs and expenses of the first suit were properly allowed against her. They arose by reason of her default, against the consequences of which she was bound to indemnify him. Judgment affirmed. February 28, 1876, the proceedings were approved by the court and the resolution ordered to be recorded, and the statement of debts and assets ordered to be filed. Among the creditors in the statement of creditors' addresses and debts, were Opinion by Daniels, J ; Davis, P. J., named T. B. Young & Co. and Thomas and Brady, J., concurring. Young, who were returned as secured by liens of judgment upon real estate. They were notified of the meeting of W. D. or composition, also of the inquiry on approval of composition by the court. BANKRUPTCY. COMPOSITION. In re J. L. Lyttle & Co, bankrupts. They took no part in the composition or inquiry. They neither offered to reDecided Sept. 11, 1876. lease their liens and come into comAfter the recording of a resolution of position for their whole debts, nor to composition, the court has no further apply for ascertainment of the excess of power over the debtor's property, and cannot, with its jurisdiction, protect their debts beyond the value of the sethe debtor from suits wrongfully curities, and to come in for the differbrought on the debt from which he may ence. August 11, 1876, the said T. be discharged. B. Young & Co. and Thomas B. Young, On the first day of November, 1875, issued executions on their judgments J. L. Lyttle & Co. filed their petition out of the Courts of Common Pleas of in voluntary bankruptcy. November Alleghany County, and levied upon 19th, 1875, they were adjudicated bank- the stock of goods of the said J. L. rupts. Lytle & Co., in their store in the city No assignee was ever appointed. No- of Pittsburg. August 22, 1876, J. L. Lytle & Co. filed a petition in this court for an injunction praying the court to restrain the plaintiffs in the executions from interfering with the property. August 24, 1876, the court ordered an injunction as prayed for. August 26, 1876, the said T. B. Young & Co. and Thomas B. Young moved the court to dissolve the injunction and dismiss the petition. tion that the debtor shall pay, and the unsecured creditor shall receive, a certain amount of money in satisfaction of their debts. As in simple bankruptcy, the distribution among the unsecured creditors binds the secured creditors to look to their securities for their debts, and discharges the debtor from all personal liability; so this provision, besides the enforcement of the stipulations of the composition, means also, that the Held, That the court had no power composition shall confine the secured to issue the injunction; that the pro- creditor to his security, and discharge ceeding in composition is a proceeding the debtor from personal liability for in bankruptcy, and is an alternative the secured debt. mode of carrying out the principles and effectuating the purposes of the bankrupt law. It is, in fact, substituting the disposition of the debtor's estate, protect him from suits wrongfully by himself and a majority of his creditors, subject to the approval of the court, for the distribution by the as signee in simple bankruptcy. As in simple bankruptcy, all creditors who have hed notice are bound by the proceedings, so in composition, all who have had notice, and whose names, residences and debts, have been returned and filed by the debtor, are bound by the composition. But this court cannot follow a debtor after his discharge in bankruptcy, or by composition, and with its jurisdiction brought on the debt from which they may be discharged, nor can it follow property that has passed from its jurisdiction and protect it. In this case a composition was entered into for cash payments, secured by a mortgage on real estate. The composition in its terms in no way involves the property in question, either as security or otherwise, and is entirely independent of any disposition of it. It was left, so far as appears by the record, unconditionally in the possession of the debtor, where it has been from the beginning. The section of the act relating to composition declares that the provisions of a composition accepted by the resolution in pursuance of said section, shall be binding on all the creditors whose names On the recording of the resolution of and addresses, and the amounts of composition, the debtor and his creditwhose debts are shown in the statement ors having taken from the court the of the debtor, produced at the meeting distribution of the assets of the debtor, at which the resolution shall have been all control and jurisdiction over the passed, but shall not affect or prejudice debtor's property went with it, and the rights of any other creditors. from that time the court has had no There is no exception, either express-power over it. ly or by implication, of secured credit- Injunction dissolved and petition disors from its binding force. In my view missed. it comprehends more than the stipula Opinion by Ketcham, D. J. |