A bill was filed for an injunction, and Defendants refused to give the rethe evidence was so conflicting that the quired stipulation, whereupon a referMaster of the Rolls required the assist-ence was ordered, from which order the ance of a jury. He therefore made a de- defendants appealed. cree directing certain issues to be tried by a jury. Held, That the power of a Court to refer the cause was unquestionable, and having power to refer it upon motion, it had the authority to make its denial of the motion depend upon the execution Defendant appealed from this decree. Plaintiffs took the preliminary objection that the decree was not appealable. Held, The objection is not tenable. of a stipulation which should make such The defendants may show that there is no evidence to go to a jury, and therefore, that it was not a case for the exercise of any discretion at all on the part of the Judge. Williams v. Guest. L. R. 10 Chancery Appeals, pp. 467 469. Opinion by Sir W. M. James and Sir REFERENCE. N. Y. SUPREME COURT, GENERAL When a case is referable and a stipula tion is offered to take away its refera admissions touching the amount in controversy as it thought proper to impose. The authority to refer arose upon the pleadings, and it could not be taken absolutely away by any kind of stipulation. We do not think that the discretion of the Court in determining what form of stipulation should be given ought to be the subject of review, except in cases of manifest abuse. Order of reference should be affirmed. 1975. SUPERINTENDENT OF INSUR ANCE. NEW YORK SUPREME COURT-GENERAL therein provided, the securities are to be sold by the Superintendent of Insurance, and the proceeds of the sale paid over to the Receiver on his receipt, and applied by him to the satisfaction of the registerThe fund deposited with the Department, ed policies and annuity bonds; and justunder the act of 1853, is for the pro ice requires that such systems thus cretertion and benefit of the general policy holders only, and must be distrib- ated should be kept separate and distinct. uted, under the decree of the Court, by The law having provided for the distrithe Superintendent, and not by a gen-bution of the funds in the hands of the eral receiver. Act of 1869, examined. Superintendent, the application for a The relator, Receiver of the Asbury mandamus was properly denied. Life Insurance Company, made a demand upon the respondent for the delivery of $106,000, in United States securities, deposited with him as Superintendent of the Insurance Department of the State, in trust for the benefit of all the policy holders, and of all the registered policy holders of the Company, less the amount of a certain registered policy. Such demand was refused, and the relator made an application for a writ of mandamus to compel the respondent to deliver to any purchaser who shall, at the request of the relator, offer to him the market value, in cash, for the same, the $106,000 of the United States securities held in trust for the benefit of all The People ex rel Stout, Receiver of The Asbury Life Insurance Co., Applt., v. Chapman, Supt. of Insurance, Respt. Opinion by Daniels, J.; Davis, P. J. and Brady, J., concurring. Aug. 24, 1875. SURROGATE. NEW YORK COURT OE APPEALS. When a Surrogate pays out the money coming to him in the Surrogate's fund, to the injury of a depositor, he is liable therefor. This action was brought to recover a sum of money which, before the final the policy holders of said Company, and accounting of an administrator, was of all the registered policy holders of ordered, by a decree of the Surrogate of said Company, and to deliver the said Westchester County, to be paid into the cash proceeds to the relator; which hands of the Surrogate, and was by him motion was denied and this appeal taken. invested. After his death it was paid to Ileld, That the act passed June 24th, his successor in office, who deposited the 1853, and the acts amendatory thereof, money in the Life and Trust Co., where providing for the incorporation of life it remained until the expiration of his and health insurance companies, and the term of office. It was then, with the statute passed May 18th, 1869, provid- whole balance standing to his credit in ing for special deposits of not less than the Trust Co., transferred to the credit $25,000, as security for registered policy of defendant, his successor. Defendant holders and annuity bonds, created two appears to have accepted the transfer different systems. The trust property, without inquiry as to who were the under the act of 1853, which was for the owners of the fund, and to have paid all benefit of the general policy holders, is orders thereon presented to him, on the provided to be distributed by the Super- assumption that the Surrogate's Fund intendent, as therein provided, under the was intact, and sufficient to meet the dedecree of the Court; and by the act of mands of all just claimants, until he dis1869, in case of appointment of receiver, covered that there was not enough to upou application of Attorney-General, as pay the sum belonging to plaintiff. Held, That defendant was liable; that ed in 1860 to about $278,000. It was it was his duty, upon entering on his claimed by the city authorities that it office, and receiving from his predecessor was unable to pay the debt, and a comwhat purported to be the Surrogate's promise was proposed at the rate of Fund, before paying out any part of it, twenty-five cents on the dollar. The to ascertain from what source it was de- plaintiff, in the name of himself and corived, and who were the parties entitled trustee, but without his concurrence or to it; and in making payments without authority, on June 15, 1869, presented a such examination he acted at his own petition at Chambers which, after setting peril. forth the facts relied upon, applied for an order allowing and authorizing them Judgment affirmed. Desbrow, Respt., vs. Mills, Surrogate, to make such compromise and settlement &c., Applt. Opinion by Rapallo, J. Oct. 5, 1875. TRUST. NEW YORK SUPREME COURT-GENERAL of the claims against the City of Dubuque, upon the payment of twenty-five per cent. of said indebtedness. The application was referred to a Referee to take proof of the facts in the petition and report thereon to the Court. After a hearing, he reported that Morris K. Jessup and Joseph Herzfeld, as assignees as aforesaid, be authorized and Trustees for creditors must give them directed to compromise the claim held notice of any action they take to pro- by them against the City of Dubuque, cure any adjudication of their (the at twenty-five cents on the dollar, which creditors) rights, otherwise they are re-report was confirmed, and an order made sponsible to them for their action in authorizing and directing such comprothe management of the trust. Trustees must act together in the disposition of mise. Upon the final hearing of the case the property of the trust. it appeared that such order was made An appeal by three defendants from without notice to any of the creditors. an order made at Special Term, denying On such final hearing of the case the demotion to set aside or modify the report fendants appealing objected to the allow of a Referee and decree thereon, settling ance on the part of the plaintiff, which the accounts of plaintiff as trustee under was dependent upon the validity of the a general assignment made for the bene- settlement of the claim against the City of Dubuque. The Referce's report disregarded such objections. The plaintiff claimed to be protected by the order of the Court directing such compromise, The question of the validity of suc!: compromise was the principal question argued on appeal. fit of creditors. A general assignment was made June 11, 1861, by the firm of Gelpcke, Keutzen & Reichelt to Wm. Vogel, of all their property, for the benefit of credit ors. Such assignee failing to give the security prescribed by the statute and fixed by the Court, the Court appointed Held, That it has been the common the plaintiff and Joseph Herzfeld trus- practice of Courts of Equity to advise tees to execute the trusts created by the and direct trustees as to the discharge of assignment. Among the assets assigned their duties. And when the order may and which passed into the hands of the not have the effect of determining contrustees under their appointment was a troverted rights, notice of the application large demand existing against the City for it does not seem to have been and of Dubuque, Iowa. This claim, consist- probably would not be indispensable to ing of bonds and two judgments, amount-its validity, for in that class of cases it is WEIGHT OF EVIDENCE. at most permissive and advisory. But where controverted rights, or doubtful NEW YORK SUPREME COURT.-GEN'L TERM, FIRST DEP'T. A new trial will not be granted, though a verdict is found on the testimony of one witness against the testimony of another witness who is corroborated in some particulars. The jury determines the question of veracity, in such a case. Certiorari to Court of Special Sessions to review the conviction of relator on charge of assault and battery on one James Flynn. acts are to be determined, that practice would be altogether improper, for it would oppose the fundamental principle which protects parties against the consequences of judicial proceedings of which they may have had no notice. To render them controlling and obligatory in that class of cases, not only notice, but an opportunity to oppose the application to be made, are both matters of vital necessity. The practice in such cases has been by bill of complaint, or by petition accompanied with notice to the parties interested in opposing it, and trustees are not exceptions to this principle. Notice of application to compromise the claims against the City of Dubuque should have been give to the creditors. Power to compromise debts exists in trustees without notice to creditors, but they will be held responsible to creditors if it be found to be an improper arrangement. The order made conferred no power on Held, 1. That the case is clearly within the assignees that they did not have the jurisdiction of the Court of Special without it. The objection is made that Sessions. the co-assignee did not join in the peti- 2. That the evidence of Flynn, if betion; but the petition is made in behalf lieved, was sufficient to sustain a convie Relator was tried by the Court of Special Sessions, composed of three Police Justices, convicted and sentenced. No complaint of irregularity is made. the complaint is sustained on the testiThe defendant mony of Flynn alone. denied the testimony of Flynn, and he called several other witnesses, "whose testimony tended strongly, in some other respects, to corroborate him." It is claimed that this conviction is against the weight of evidence. tion. of both. As a general rule, trustees cannot act separately, but they must all join The only question for the Court below in any sale, lease, or other disposition of was one of veracity; it had all the witthe trust property. The compromise of nesses before it, and had an opportunity the claims against the City of Dubuque to judge of their truthfulness; and this was improvident. Even if there were no Court is not at liberty to review such a intentional misconduct, it is impossible question when the evidence was conflictunder the statutory doctrine of Courts of ing. Proceedings and judgment affirmed. The People ex rel. Flaherty v. The Court of Special Sessions. Opinion by Davis, P. J.; Daniels, J., concurring. Aug. 24, 1875. Equity to concede that degree of good faith to such conduct on the part of the trustees as will discharge them from liability. The order appealed from should be reversed, the accounting set aside, and a new accounting directed, as far as the ap pellants are concerned, with costs to abid the event. Jessup, assignee, Respt., v. Herzfeld, Opinion by Daniels, J.; Davis, P. J., The Santee 7, Blatch., 186, distinguished and explained. Judgment affirmed. BANKRUPTCY. UNITED STATES DISTRICT COURT-EAST- In re M. Eldridge & Co. 12 N. B. R. The Statutes of Limitation do not run in The bankrupts contracted a debt to Richard A. Hawes & Co. in 1861. In 1872, in Virginia, the adjudication in bankruptcy was made. Hawes & Co. did not prove their claim until 1875. A debt is outlawed in Virginia after five years, but the Statute of Limitations did not run in Virginia from July 26, 1861, to January 1, 1869. The assignee seeks to bar this claim by the Statute of Limitations. The assignee argued that proving a claim in bankruptcy was the beginning of a creditor's suit against the assignee. This action was brought against defendants as common carriers to recover for the loss of four cases of dry goods. It appeared upon the trial that the goods. in controversy were shipped on board defendants' steamer at Liverpool, consigned to plaintiffs at Jersey City, under bills of lading containing a clause which provided that the goods were to be taken from alongside by the consignees as soon as the vessel was ready to discharge, otherwise to be deposited at the expense of the consignees, and at their risk of fire, loss or injury in the warehouse, provided for that purpose, on the steamship wharf at Jersey City, or sent to the public store, as the collector of the Port of New York shall direct, and when deposited in the warehouse to be subject to storage. The ship arrived Aug. 11, 1969, and the consignees were notified of the arrival of the goods, and of a readiness to discharge, and gave the necessary permit to land, but did not remove them. Defendants placed them in the warehouse on their wharf mentioned in the bill of lading. The goods were removed by some unauthorized person, and were never received by the consignees. Held, That defendants were liable as 5 The assignee is a trustee for the warehousemen; that they were not ex- creditors, and it is idle to say that a proof empted by the terms of the bill of lading of debt is a suit, for there are no adverse from the ordinary responsibility which interests between them. Held, Hughes J. 1. That a proceeding in bankruptcy is a suit of the bankrupt as plaintiff against all of his creditors. 2. That the Statute of Limitations applies only to parties plaintiff. 3. That the statute ceases to run when the proceedings in bankruptcy are taken. 4. That, including a debt in the schedule makes a new promise to pay the debt. attaches to warehousemen for want of 6. A Court of Bankruptcy will give proper care, and especially for a negligent effect to Statutes or Limitation when misdelivery. they are applicable. |