ACCOUNTING.
See Guardian and Ward.
See Associations; Bankruptcy; Executors and Administrators;
Insurance (Accident); Penalties; Statute of Limitations.
Claim of title.- The declarations of one claiming to hold adversely
to his co-tenant, made during the period of such adverse holding, may
be proved by those claiming under him for the purpose of character-
izing his possession and showing the quo animo of his occupancy. Cole
v. Lester, 13.
ADVERTISEMENT.
See Foreclosure.
Alien trustees and beneficiaries.— A citizen of the United States may
create a trust for the benefit of children and husband who are subjects
of Great Britain and may appoint British subjects as trustees.
Property Law, § 52.)
1. Time of taking - From order denying new trial after expiration
of time to appeal from judgment.- An order denying a motion for a
new trial upon the minutes, not entered until after the expiration of
the time within which to appeal from the judgment, is appealable.
Howe v. Noyes, 356.
2. Effect of - Power of court below after.- Where an order is en-
tered in June, application for its resettlement made in October, when
an appeal therefrom is ready for argument, if granted at all, should
be upon terms. After the printed papers upon an appeal from an order
have been served and filed, the court below has no control or authority
over the record and cannot enforce an order for its recall. Koeppel v.
Koeppel, 358.
See Bankruptcy; Landlord and Tenant.
Property or rights assignable — Contracts involving reliance upon
personal skill not assignable.—A contract for the purchase of goods to
be made by a particular manufacturer is presumed to have been made
in reliance upon the reputation or known skill of the manufacturer and
is not assignable. An agreement, whereby a tenant of a brewing com-
pany, in consideration of a lease of certain premises used as a hotel.
and liquor store, undertakes to buy beer only from the brewing com
pany, is not assignable; and, where the assets of the brewing company,
including the lease and agreement, are sold by its trustee in bank-
ruptcy, the purchaser, another brewing company, may not enforce the
agreement although it adopts, as descriptive of the beer brewed by it,
the name formerly used by the bankrupt. Jetter v. Scollan, 546.
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Membership Expulsion - Review of expulsion by court · Consoli-
dated Stock and Petroleum Exchange Rights of member upon trial
of charges Submitting to jurisdiction Definiteness of charges
Waiver. The general rule governing trials by voluntary associations
is that of fair play and, before one can be deprived of his rights as a
member by expulsion, he must have notice of any charges against him;
and an opportunity to be heard in his own defense, to confront his
accusers and to examine witnesses and he must be tried by an impar-
tial tribunal. A mere summons to appear before the board of directors,
at a stated time, in the directors' room, to give such information as
they require under the provisions of a certain article of the constitu-
tion of the association, upon the back of which is printed the by-law
giving the directors authority to require the attendance of any mem-
her as a witness or otherwise, is not sufficient; but, in fairness to the
accused member, he should also be given notice of the charges preferred
against him, even in the absence of any provision therefor in the con-
stitution and by-laws. Where, in an action to have it adjudged that
plaintiff is a member of defendant, the Consolidated Stock and Petro-
leum Exchange, a voluntary unincorporated association, and that it
and its officers be restrained from interfering with his rights and
privileges of membership, the answer, among other defenses, plead-
plaintiff's expulsion, after due trial, the burden of proof of the service
of a notice of the charges upon plaintiff is upon the defendant; and
where the plaintiff testifies that the aforesaid summons was the only
paper received by him, and defendant's secretary testifies that he put
a copy of the charges in the same envelope containing the summons and
charges, and its messenger testifies that he does not know what the
envelope which he served contained, defendant fails to sustain the
burden of proof. Where the plaintiff in such action appeared before
the board of directors, heard the charges read, a copy of which was
handed to him, and where he was present during the entire time that
evidence was presented, was given an opportunity to cross-examine and
to make any statement he desired, acquiesced in the procedure and made
no objection of any kind, nor any request for further opportunity to
be heard, he must be held to have submitted to the jurisdiction of the
board and waived service of the charges in advance of the trial. A
charge, that plaintiff, a member of a certain firm, naming it, up to
a certain date, with obvious fraud and false pretense, did acts detri
mental to the interest and welfare of the Exchange, in connection with
purchases and sales of stock supposed to be made for a certain person,
naming him, between June 15, 1900, and August 16, 1900, the date
of plaintiff's withdrawal from his firm, although somewhat indefinite
in form, was sufficient to fairly inform the plaintiff that he was charged
with obvious fraud, defined by the by-laws, in transactions with a par-
ticular customer, within two specified months; but, if defective, plain-
tiff, by submitting to trial thereon without objection, had waived the
defect. Where, in such case, it appears that the board of directors
was properly convened and proceeded regularly under the constitution
of the Exchange and plaintiff, after a fair opportunity to be heard,
is expelled by the vote provided by the constitution and by-laws; and
the case discloses that plaintiff had a fair and impartial trial and
there is evidence to support the charges upon which the directors,
who are the judges of its sufficiency, could base their judgment of
expulsion, defendant is entitled to judgment with costs. Williamson
v. Randolph, 96.
Affidavit to obtain · Sufficiency — Averments as to grounds-City
Court of the city of New York Code Civ. Pro., § 3169.- An affidavit
that defendant is in custody, in default of $2,000 bail, to await the
action of a magistrate and may be discharged at any time, in which
event he will leave this State for the purpose of defrauding plaintiff,
is insufficient to bring the case within the provisions of section 3169
of the Code of Civil Procedure; and an attachment granted upon such
affidavit will be vacated upon motion. Tocci v. Gianvecchio, 351.
Hiring — Rights and liabilities after expiration_of_term — Duty of
bailee to return vessel.- Where the hirer of a coal boat assumes, in
a letter to the owner, the ordinary obligation of a bailee for hire to
return it to the owner's dry dock, and the boat is found abandoned
in a damaged condition, the hirer is liable for the cost of towage to
the owner's dry dock. Swenson v. Ward, 534.
See Corporations; Executors and Administrators.
1. Validity of transfers by bankrupt — Sufficiency of evidence in action
to set aside transfers.- Where a person opened an account with a bank
for the purpose of obtaining discounts and the bank discounted paper
for him to the amount of $20,000, on the strength of his statement
showing financial responsibility and assets to the amount of $63,000,
and renewed the paper from time to time; and where, during a perio
of nine months, in the course of which the bank received from time
to time reports and information prejudicial to the credit and provi-
dence of the customer and found that he did not keep promises of pay-
ments from the proceeds of his property, he had reduced his indebted-
ness to $13,000, and, at the end of that time, declared that he could
not pay any part of the remainder of the debt; and where, a few days
later, the bank, then without security, after the customer's default.
made an arrangement with him, by which he was placed at the mercy
of the bank which bound itself to nothing and, in pursuance of which.
he subsequently made eleven successive assignments of accounts be-
tween April 12 and May 21, aggregating $47,920.34, and covering claims
for all his shipments as soon as made and all his uncollected accounts
previously accrued; and where the bank made collections and passed
the proceeds to a separate account out of which, without any agree.
ment or obligation under the terms of the arrangement so to do, it
paid his checks aggregating $19,750 drawn on his personal account,
in which there was no money, until May 19, when its refusal to pay
a note precipitated a crisis; and where, after he had, upon the sugges
tion of the bank, turned over his business to a third party and the
bank had refused to reassign the claims it held to provide working
capital therefor, a petition in involuntary bankruptcy was filed, June 4,
and, after adjudication, the trustee in bankruptcy brought this suit
to set aside the assignments to the bank on the ground that they
were made to hinder, delay and defraud creditors, or, to recover the
proceeds of its collections on the ground the bank had acquired
an unlawful preference; and where, after the petition was filed, the
bank had continued to collect the assigned accounts and, after paying
itself had turned over the balance to the trustee in bankruptcy; and
where the customer's financial condition seems to have grown steadily
worse during the time the assignments were being made until his
liabilities became $12,000 more than his assets, though, when the
arrangement for the assignments was made they were only $8,000
more: a claim that the customer's insolvency was not established,
because the good-will of his business was not taken into account.
will not be regarded; for no good-will could have been left in the
business under the conditions shown where, in one year, assets of
$63,000 resulted in a deficiency of $8,000; and because good-will is
not to be estimated upon what the business might have been under
different management, but upon what it was under the management
and conditions that actually existed; and the debtor's insolvency, as
well as the bank's knowledge of the debtor's condition, clearly appear-
ing from its own course of conduct and that of the debtor, as well as
from many circumstances pointing to that conclusion, and the trans-
fers having been made within four months, the plaintiff is entitled
to recover so much of the bank's collections as it had applied to the
payment of the indebtedness due it at the time the arrangement with
its customer was made, but is not entitled to recover the remainder
of the fund which had been applied toward the payment of the cus-
tomer's liabilities to third parties. Evans v. National Broadway Bank,
2. Validity of transfers and preferences by bankrupt and proceedings
to annul such transfers - When reasonable cause to believe preference
intended must be established — Preference by judgment and execution
-Justices of the peace · - Appeal — New trial ordered Code Civ.
Pro., 3063.- Where money, collected upon an execution issued upon
a judgment obtained against an insolvent debtor within four months
prior to his adjudication as a bankrupt, is paid over to the judgment
creditor before the filing of the petition in bankruptcy, the case does
not all within the provisions of section 67f of the Bankruptcy Act,
1898, which specifically provides for the nullification of the existing
liens and for the right of the trustee in bankruptcy to receive the
property of the bankrupt discharged therefrom. Although the pay-
ment to the execution creditor constitutes a preference under the
Bankruptcy Act, 1898, it is not recoverable by the trustee under sec-
tion 60b of said act, in the absence of both averment and proof that
the creditor had reasonable cause to believe that a preference was
intended. Where the trustee brings the action in a Justice's Court
to recover the payment from the execution creditor and neither alleges
nor proves that the defendant had reasonable cause to believe that a
preference was intended, a judgment in his favor is clearly contrary
to the evidence and must be reversed and a new trial ordered, under
section 3063 of the Code of Civil Procedure, to enable plaintiff to supply
the defects in his proof. Starbuck v. Gebo, 333.
Fraternal and mutual — Insurance contract-By-laws of association
as part of contract — Amendments thereto — Reinstatement of member.
Where a member of a mutual fraternal benefit association, in his
application for membership, agreed that any laws of the association
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