MARRIED WOMEN.
HUSBAND AND WIFE.
mistake cannot be recovered back
without proof of demand, or at
least, of notice of the mistake.
Mayor, &c. of New York v. Erben,
An instrument may be reformed
in equity although the contract
contained in it would be invalid
unless in writing. Prior v. Wil
liams.
CONTRACTS, 10; MONEY RECEIVED,
3; MUNICIPAL CORPORATION,
4; PAYMENT, 3.
1. Where an insurance company,
organized under the general law
applicable to such companies,
being insolvent, distributes its
capital among its stockholders,
thus placing the fund beyond the
reach of its creditors, it acts in
fraud of its creditors, and the
fund may be recovered back from
those who received it, by a proper
action commenced by the proper
parties. Osgood v. Laytin. 418.
The complaint in such case need
not aver that in making such dis-
tribution it was done with an in-
tent to defraud the creditors.
The receiver of the company,
since he represents the creditors,
is the proper person to bring such
action. No creditor can individu-
ally maintain an action against
an individual stockholder, for the
share so illegally distributed to
him; the liability is to the credit-
ors generally, and the action
1. In mechanics' lien cases arising
under the statute of 1844, c. 305,
the court acquires jurisdiction by
the personal service of the notice 2.
to the opposite party within the
time fixed by the statute, and a
personal judgment should not be
reversed because no lien was 3.
established, if it appear by the
recitals that the incipient proceed-
ings to create a lien were taken.
Maltby v. Greene, 144.
2. On a default, the judgment in
such a proceeding may be per-
sonal, like a judgment in assump-
sit. Ib.
4. In such action it is proper for the
receiver to join as defendants any 3.
creditors who have instituted such
suits, and those who threaten to
do so, for the purpose of protect-
ing the stockholders from a mul
tiplicity of actions. Ib.
5. In an action on a note, the defense
that it was transferred by a
moneyed corporation without a
vote of the directors, contrary to'
1 R. S. 591, § 8, is not available
where it is alleged in the com-
plaint, and not denied by the
answer, that the note was duly
indorsed, transferred, and de 1.
livered by the corporation. Ogden
v. Raymond, 396.
6. It seems, that such defense is not
available in an action on a single
note for less than one thousand]
dollars, although it was trans-
ferred as
a part of securities
together exceeding that
Ib.
executory contract. This is not
an action in aid of an illegal
agreement.
Merritt v. Millard,
An indorser who pays the amount
of a note to a holder, under a mis-
taken belief, founded on state-
ments of the holder, that he, the
indorser, has been duly charged,
or that a prior indorser has been,
may, on discovering that he was
not so charged, maintain an action
to recover back the amount paid.
Lake v. Artisans' Bank, 10.
Where a debtor gives his creditor
a bond and mortgage to secure the
balance of their account, and
thereafter transactions continue
between them, by which the bal-
ance passes to an equal amount
against the mortgagee, the ques
tion whether the mortgage is
paid thereby or continues as a
subsisting security, depends on
the intention of the parties, which
is a question of fact. Peck v. Mi-
not, 465.
2. If it was their intent and agree-
ment that the money secured by
the mortgage should remain due
irrespective of the current bal-
ance of accounts, the mortgagor
is not entitled, as against an
assignee, to have it canceled by
proving a balance accrued against
the mortgagee before the assign-
ment. lb.
3. The mortgagor's acceptance of a
release of a part of the mortgaged
premises, and giving his notes
for interest due on the bond, are
evidence of an intention to keep
the mortgage subsisting. Ib.
A mortgage having been duly re-
corded, the grantee of the equity
of redemption takes his title sub-
ject to the lien of the mortgage,
and the mortgagor still has power
to prevent the exoneration of the
land through the presumption of
payment arising from the lapse
of time, by making partial pay-
ment or written acknowledgment.
Hence, a purchaser finding a
mortgage upon the land cannot
rely upon the presumption arising
1. Where a third person receives
money due from a debtor to his 4.
creditor, and does not pay it over
to the creditor, in consequence of
which the creditor sues his debtor
and recovers his demand, the
debtor may sue such third person
to recover back the former pay-
ment. Priest v. Price, 622.
2. One who receives money from A.
upon a simple trust, to pay over
to B., cannot resist an action by B.
on the ground that it was paid by
A. in performance of an illegal
from the lapse of twenty years,
but must ascertain, at his peril,
whether anything has been done
to repel that presumption. New
York Life Ins. & Trust Co. v.
Covert, 350.
ASSIGNMENTS, 1; BONDS, 1; EvI-
DENCE, 1.
of a majority of all the persons
affected by any of the work, was
invalid, it appearing from the as-
sessment that a majority of those
affected by the grading were not
petitioners. Ib.
1. Defendant's land having been
taken for a local improvement,
and an award in his favor for
compensation having been made,
the municipal corporation, with
knowledge of the facts, paid him
a sum larger than the award,
and he received it in ignorance of
the fact, he being informed by
their clerk that it was the amount
of the award, and relying on this
information. There was some
evidence that the amount actually
paid was no more than should
have been awarded; and there
was no finding by the referee of
mistake on the part of the cor
poration in making the payment.
Held, that upon this state of the
case, the corporation could rot
recover back the excess. Mayor,
&c. of New York v. Erben, 255.
Attorneys appearing for a muni-
cipal corporation will be presumed
to be duly authorized, although
such corporation has, by law, an
official counsel, and a law depart
ment charged with the control of
all law business in which the city
is interested. Mayor, &c. of New
York v. Exchange Fire Ins. Co.,
261.
1. A statute (L. 1865, c. 180, p. 120)
authorizing and directing a muni-
cipal corporation to create a public
fund or stock for the building of
a market, and also requiring the
comptroller of the corporation to
issue the stock on the requirement
of the commissioners, does not
require the comptroller to issue
the stock until the legislative de-
partment of the corporation have
made an ordinance creating the 5.
stock. People ex rel. Market Com-
missioners v. Common Council of
N. Y., 502.
2. Where the statute recognizes two
classes of local improvements, one
of which it forbids to be made
except on petition of a majority of
those to be affected by the assess-
ment, an assessment for a work
including improvements of both 6.
classes cannot be made on a peti-
tion of a mere majority of all
those affected by any part of the
work.
The certificate of the as-
sessors should show that the
petition is by a majority of those
affected by that part of the work
for which a petition is necessary.
Lathrop v. City of Buffalo, 30.
3. The charter of the city of Buffalo
allowed assessments for paving
and for crosswalks to be made in
the discretion of the common
council, but assessments for
grading could only be made on a
It seems, that the provisions of L.
1859, p. 570, c. 262, § 2,-that no
costs, &c., shall be recovered
against a municipal corporation
unless the claim was presented
for payment to the chief officer of
the corporation, before the suit,-
does not apply to actions for un-
liquidated damages arising ex
delicto;-e. g., to a claim for
damages for property destroyed
by a mob. McClure v. Supervisors
of Niagara, 83.
petition of a majority of those RAILROAD COMPANIES, 5, 6; STAT-
interested or liable to be assessed.
Held, that an assessment for
grading a street, and for paving,
and crosswalks at intersections of
other streets, made upon petition
1. The refuaal of the court below to
allow a question to be put to a
. witness, is not ground for grant-
ing a new trial upon motion, un-
less the offer was made in such a
manner as to enable the judge to FORECLOSURE, 1; MONEYED CORPO-
see the materiality of the evi-
dence. Pratt v. Strong, 620.
2. The admission of a declaration of
the deceased, made during her
illness or before she had an ap
RATIONS, 4; PARTITION, 1.
prehension of death, Held, a1. A purchaser at a partition sale,
ground of reversal although it
was received without objection.
People v. Williams, 596.
1. The provisions of the non-im-
prisonment act (L. 1831, c. 300), 2.
are not superseded by the pro-
visions of the Code of Procedure
relative to arrest and bail. People
ex rel. Latorre v. O'Brien, 552.
2. The non-imprisonment act is
punitory as well as remedial. Ib.
The neglect of officers charged with 1.
levying taxes, to raise money
which they are required to raise
for the benefit of public creditors,
may amount under peculiar cir-
stances to a refusal to do so. Peo-
ple ex rel. Wetmore v. Supervisors
of New York, 566.
POLICE, 1; SHERIFF, 2; TAXES 2.
A mortgage debtor paid a sum of
money to the son of the mortga
gees' agent, to be applied on the
mortgage. The agent had author-
ity to receive money for the mort-
gagees, and the son had for a
number of years acted as his
clerk or servant in the business
of the agency, and had sometimes
carried money collected to the
mortgagees, but had no authority
as their agent. Held, that the
debtor's payment to him was not
payment to the mortgagees'
agent; and that the promise of
the agent that he would allow
such payment, was not binding on
the mortgagees. Lewis v. Inger-
soll, 55.
2. The doctrine that an agreement]
that mutual debts shall be applied
in satisfaction of each other, oper-
ates as a satisfaction of both, will
not constitute a payment such as
will save an oral agreement from
the statute of frauds. Mattice v.
Allen, 248.
3. To constitute a voluntary pay-3.
ment within the rule that a vol-
untary payment cannot be recov
ered back, it must be made with
a full knowledge of all material
facts. Lake v. Artisans' Bank, 10.
ESTOPPEL, 2; EVIDENCE, 1; EXEC-
UTORS AND ADMINISTRATORS, 9;
MONEY RECEIVED, 1; MORT-
GAGES, 4; RAILROAD COM-
PANIES, 1; SALE, 1.
trial solely relies on, an express
promise to pay a specified sum,
the defendants are not entitled to
prove that the value of the servi-
ces was less, although the com-
plaint contain allegations appro-
priate to an action on a quantum
meruit. Marsh v. Holbrook, 176.
In an action for rent, under an
averment describing the lease as
for two years, the lease may be
admitted in evidence, although
extended by virtue of a covenant
therein contained, for an addi-
tional period, at an increased rent.
Phelpsv. Van Dusen, 604.
4. An answer alleging payment of
the debt is the proper mode of
presenting, as a defense, the pre-
sumption created by statute, aris-
ing from the lapse of twenty years.
Per GROVER, J. New York Life
Ins. & Trust Co. v. Covert, 350.
EVIDENCE, 4; INDICTMENTS, 4;
MONEYED CORPORATIONS, 2,
5; PARTITION, 2; REFER-
ENCE; TRIALS, 1;
TURNPIKES, 4.
Where a statute contemplates one
offense, in the commission of
which two classes of offenders
may be engaged,―e. g., L. 1839, c.
13, imposing on managers of
theatrical exhibitions, in New
York, carried on without license,
and on owners, &c., of buildings
let therefor,-an offense by both
is one and entire, and the penalty 1.
for one offense is single; and a
complaint against both for a pen-
alty states but one cause of action.
People v. Kolb, 529.
MUNICIPAL CORPORATION, 2.
The Metropolitan Police act (L.
1855, c. 569), which provided that
members of the force should not
be removed except on written
charges, and after opportunity to
be heard in defense,-entitled a
member to actual notice. People
ex rel. Gorman v. Board of Police,
488.
2. Since, by the act, removal dis-
qualifies from reappointment, a
removal without such notice,
though a nullity, should be re-
versed by the court, because it in-
volves an apparent deprivation of
a legal right. Ib.
1. In an action against the maker of
negotiable paper, payable to
bearer, it is sufficient, after alleg. 3.
ing that defendant drew it, to al-
lege that it was transferred and
delivered to plaintiff, without
saying by whom, if it be also
alleged that the transfer was for
value, and that plaintiff is the
owner. Mechanics' Bank v. Strai-
ton, 269.
2. In an action to recover compen-
sation for services, if the complaint
alleges, and the plaintiff at the
Such a removal, being a judicial
proceeding, is a proper subject of
review upon certiorari. Ib.
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