all objections to the regularity or suffi- BANKRUPTCY. N. Y. SUPREME COURT.-GENERAL Havens, respt. v. The National City 13 N. B. R. Rep., pp. 91-94. The contribution by a special partner to the capital stock must be paid in cash, else he will be a general partner. The firm of Merrill, Wilder & Co. were charged by a creditor with having committed acts of bankruptcy, and in the petition it was averred that the firm was composed of William G. Merrill, David Wilder, Villars Merrill, Jr., and George J. Letchworth, all general partners therein. The application for a decree adjudging them bankrupts, was resisted by Letchworth only, on the ground that he was a special partner in the firm, and that the parnership was a limited partnership, formed under the provisions of the statutes of the State of New York, wherein he was in no wise liable for the debts of the firm otherwise or beyond the capital he had contributed to the common stock. In supplementary proceedings upon a judgment recovered by Havens against the assignee in bankruptcy of the Central Bank of Brooklyn, upon an indebtedness of the Central Bank, an order was made He, Letchworth, was admitted to memrequiring the National City Bank to pay bership of the firm, and permitted to the amount of the judgment from the share in the profits, in consideration that he should contribute to the common moneys on deposit of the Central Bank, standing to the credit of the assignee. stock, $1000 in cash, and, in addition Opinion. The appellant, The National thereto, "the entire inventory on hand, City Bank of Brooklyn, is not a corporaof the effects and property belonging to tion having property of the judgment- him, lately owned and used by M. Aiden, debtor, under section 294 of the Code. deceased, and said Letchworth, supposed It is the depository of the Bankrupt to be about $8,000." To carry this purCourt of the United States for the pose into effect they signed and filed, as Eastern District of New York. It required by the statute, a "certificate of has no power to pay out any of the limited partnership" (so entitled,) in funds so deposited, except upon a warrant which, among other proper particulars, of the assignee in bankruptcy, counter- it was certified, that "said William G. signed by the District Judge, or by a Register in bankruptcy of the district. The fund is in the Bankrupt court and is to be disposed of by order of that court, (Bankrupt Law of 1866. sec 27.) The Bankrupt Court has the sole jurisdiction over the bankrupt's estate. Order reversed, with ten dollars costs. Merrin, David Wilder, and Villars Merrill, Jr., shall be the general partners, and the said George J. Letchworth shall be a special partner, and has contributed to the common stock $1,000 in cash, and about $8,000 of effects and property, the exact amount of which is yet to be ascertained." To this certificate was annexed the affidavit of William G. Merrill, that Letchworth "has actually contributed the sum of $1,000 in cash, to U. S. CIRCUIT COURT-S. D. OF N. Y. the common stock of the said firm, and In re Merrill, et al. has paid the same in good faith." The statutes under which the parties persons, and payable in six, nine or twelve attempted to establish a limited partner- months from the date of the passage of ship, (1 R. S., 894, sec. 2,) provides, that the resolution, without interest. The such partnerships may consist of general resolution was duly passed and confirmed. partners, responsible as general partners The question was whether it was bad in now are by law, and "of one or more substance. persons who shall contribute in actual cash payments, a specified sum, as capital, to the common stock, who shall be called special partners, and who shall not be liable for the debts of the partnership, beyond the fund so contributed by him or them to the capital." It then requires that the certificate to be filed, shall, among other things, state "the amount intended by the resolution that on the of capital which each special partner taking of the notes the payment shall be shall have contributed to the common complete. stock," and that there shall be filed with the certificate, an affidavit stating that the sums specified in the certificate to have Held, Lowell, J. The statute contemplates the payment of money, only. It refers to money only as contrasted with other property. The money does not mean cash on the nail, or on demand, but the payment must be in what the law admits to be money. The notes are not money, and yet it is Composition set aside. been contributed by each of the special U. S. DISTRICT COURT. E. D. OF N. Y. partners to the common stock have been actually and in good faith paid in cash." The District Court held Letchworth to be a general partner, and adjudged all A the partners bankrupt, and he, Letchworth seeks to review and reverse this adjucation. Held, Woodruff, Cir. J. The partner ship the parties attempted to establish was not such as the statute provides for. The express condition of the exemption from liability beyond the fund "contributed by him or them to the capital" is that the fund contributed shall be in actual cash payments. The adjudication is affirmed, with costs. U.S. DISTRICT COURT-MASSACHUSETTS. 13 N. B. R. Rep. pp. 60-61. Marvin, assignee v. Chambers. 13 N. B. K. Rep. pp. 77-78. mortgage to secure future credits is valid, to the extent of the goods supplied, as against the assignee. This is an action brought by Richard Marvin, assignee in bankruptcy of Joseph Farrel, to set aside a mortgage made by the bankrupt to Chambers. On the 5th The bankrupt was a dealer in boots. and shoes, and was accustomed to buy goods from the defendant. of June, 1874, the bankrupt, not being at the time indebted to him, went to the defendant to buy some goods on credit, and it was then agreed between them that goods should be supplied to the bankrupt, from time to time, upon the security of a mortgage upon certain lands. The mortgage was made, and in terms stated that it was given to secure any liability, not exceeding the sum of three In a composition with creditors money thousand dollars, that might be incurred only can be paid. A resolution for composition was passed as follows:-The bankrupt shall pay fifty per cent. of his several debts in the notes of the bankrupt, indorsed by two by the mortgagor to the mortgagee. The clause was drawn to cover any present as well as any future liability. Goods were delivered to the bankrupt to the value of $800, and shortly afterwards Farrel was bankrupt, and defendant holds the mortgage as security for these goods so sold. There was some contradictory evidence as to whether defendant knew that Farrel was insolvent at the tim of the execution of the mortgage, but there was no dispute that, after making the mortgage, Farrel continued his business, and actually received the goods which, as has been stated, were worth about $800. Held. Benedict, J. The mortgage was executed in good faith for a present consideration, and it is protected by the Bankrupt Act to the extent of the advances actually made against the assignee in bankruptcy. The bill dismissed with costs. Rathburn et al. v. The Citizens' Steamboat Co. of Troy. Decided at Trial Term, Nov., 1875. Carrier agrees to collect on delivery for The defendants are common carriers of merchandise for hire and reward, running freight boats between New York and Troy, upon the Hudson. They received a package from the plaintiffs, directed to R. A. Van Alstine, Troy, N. Y., marked U. S. DISTRICT COURT-S. D. OF N. Y. C. O. D., $94.28, which they receipted In re Wood. 13 N. B. R. Rep., p. 96. Petition. Amendment. for and agreed to deliver C. O. D. These letters and figures have a well-understood meaning among shippers, and indicate that the carrier is to collect the amount The petition in this case was filed Feb-specified upon the package before deliverbruary 29, 1868. It stated that the pe- ing it. titioner "had a place of business in New York." In February, 1873, the petitioner asked to file an amended petition, in which the following words "and has there carried on business of his own" were added to the above allegation. (Collender v. Dinsmore, 55 New York, 200.) The carrier in the present case disregarded this duty, and delivered the package upon receiving the consignees' uncertified check to the plaintiff's order. This was unauthorized, and if the plaintiffs had not by their subseHeld, Blatchford, J.-The amendment quent conduct ratified the carrier's unasked cannot be granted in the form authorized act, the plaintiff's right to reproposed. The words "business of his cover would seem clear. Upon the reown" are not found in the act. The turn of the boat to New York, however, motion may be renewed on notice, on an the carrier delivered the check to the affidavit showing the existence, at the plaintiffs, who accepted it without objecdate of filing the petition, of the facts tion, deposited it in their bank, and upon specified in Section 11, as necessary to its return from Troy, protested for nongive jurisdiction, setting forth speci- payment, the plaintiffs, for the first time, ficially the words proposed to be stricken repudiated the defendant's act in receivout, and those proposed to be inserted, and ing the check, instead of money, and the reasons why the petition was not thereupon commenced the present action made originally in the proper form, and to recover the damages suffered in conscthe reasons why the amendment was not quence. applied for sooner, after the filing of the specifications. CARRIER. N. Y. MARINE COURT. The plaintiffs were under no obligation to accept the consignee's check, and they might, by declining to receive it, have held the carrier for the money; they, however, voluntarily elected to re ceive the check, and by so doing they the avails thereof. He also found the ratified the unauthorized act of their debt to Hann, Smith & Co., over $2,000, agent (the carrier), and adopted the and that the mortgage was made to them transaction as their own (Commercial with intent to hinder, delay and defraud Bank of Buffalo v. Warren, 15 N. Y., the creditors of the mortgagor, he being at 577; Dunlap's Paley's Agency, 4th Am. the time in embarrassed circumstances, ed. of 1856, notes on p. 171; Story on and that the mortgage was accepted with Agency, 8th ed. secs. 354 to 256). the full knowledge of the pecuniary conThis act exonerated the carrier, in ab- dition of the mortgagor, and of the fraudsence of bad faith, and none is charged ulent intent with which the mortgage in the present case. was given. He also found that the mortThe defendants are, therefore, entitled gage given to the firm was fraudulent and to judgment. CHATTEL MORTGAGE. N.Y. SUPREME COURT-GENERAL TERM, Anderson, respt. v. Hann, et al, applts. void, as against the creditors of the mortgagor, and ordered that the partners account for the property, and appointed a referee to state the account, and appoint a receiver. Defendants were charged in costs. Defendants appealed and urged for reversal: That neither the findings nor the evidence show any sufficient reason for bringing the action in equity, and that the plaintiff's mortgage was not made upon such consideration as authorizes him to question a prior mortgage upon a good consideration. Held, 1. That the plaintiff's remedy was in equity, for there he had a lien on the thing itself, which is a higher security than a mortgage on land, for the title became absolute on the default made in the payment of the debt. Action to set aside as fraudulent, as against the creditors of Herman S. Smith, a chattel mortgage given by him to Hann, Smith & Co., and for the appointment of a receiver, and for an injunction. On the 2. The consideration for the plaintiff's 21st of October 1872, Herman S. Smith mortgage was as valid as that of the deexecuted a chattel mortgage for $6,000 fendants; each was given for a debt to Hann, Smith & Co., to secure the pay-previously contracted. ment of $5,000. He owed then $2,000, and was at the time, in embarassed circumstances, which fact was known to the mortgagees. The mortgage was filed on the 25th of October, 1872. On the 25th of March, 1873, Smith also gave a mortgage on the same property to the plaintiff to secure the payment of $600 for board, etc. This mortgage was filed on the 27th of March, 1873. The Judge at Special Term found that the property was worth $4,000, and that Hann, Smith & Co. had sold it and received Since the Code it is quite immaterial whether the plaintiff names his action as equitable or legal. The court will grant him such relief, legal or equitable, as the allegations in the complaint and proofs on the trial demand. The relief herein sought, and that granted are equitable only. Opinion by Hullin, P. J. CONDEMNATION OF LAND. N. Y. COURT OF APPEALS. This action was brought by plaintiffs, the contractors for the construction of Ocean Avenue in Kings County, against defendant, for cutting and removing wood and timber on land of his which had been taken and appropriated for said avenue. The road was laid out and constructed under Chapter 579 of the Laws of 1871, which required the commissioners for laying out and mapping the towns of Kings County, to lay out "as and for a public highway" Ocean Avenue 100 feet wide, and provided for the condemnation of land for that purpose, and a judicial proceeding for ascertaining the amount of compensation and the means for obtaining payment; it also expressly required them to cause a map of said avenue, as laid out, signed and acknowledged by them, to be filed in the office of the Register of Kings County. The Acts organizing the Board of Commissioners, (Chap. 670, Laws of 1869 and Chap. 609, Laws of 1870,) require the filing of a map of all roads, etc. laid out by them to be opened. At the trial the plaintiffs did not prove the filing of any map, or produce any report of the commissioners of estimates and prove that any map had been made or filed. Possession was not taken until after the contract had been let in Novem ber, and the report of the estimate of damages was not made until October 9th, prior to which time the wood had been. cut. Held, That the proof failing to show a compliance with the statute, it did not appear that there was an appropriation of the land, and the non-suit was therefore proper. Plaintiffs claimed that the commissioners of estimate and assessment had actually allowed defendant the value of his growing timber, and one of them testified that this was done by deciding that as the wood would only pay for taking it off and grubbing out the roots, they assessed it the same as tillable land. It appeared that defendant had sold the wood standing at $3.00 per cord. Held, That as defendant was under no obligation to grub out the stumps to prepare the land for street purposes, the value of his growing timber could not be offset against the expense therefor, but that he was entitled to compensation therefor. Judgment of General Term, affirming judgment dismissing complaint and order denying new trial affirmed. Opinion by Church, C. J. CONSIDERATION. CITY COURT OF BROOKLYN—Genl Term. Snedeker, respt. v. Gove, applt. A promissory note as a collateral security for a pre-existing debt must be supported by a distinct consideration to make the taker a holder for value. assessment, or any evidence that the report had been confirmed. Defendant's counsel moved for a non-suit on the ground that it had not been shown that the land had been taken when the tim- Action by plaintiff upon two promisber was cut, it not appearing whether sory notes made by defendant wherein dethe commissioners' report had been con- fendant stated she charged her separate firmed or when confirmed. The motion estate. Answer sets up that defendant was granted. Plaintiff's counsel then received no value for the notes; that plainoffered in evidence the report of the tiff parted with no value, but received the commissioners of estimate, which offer note as collateral security for a precedent was refused. There was no offer to debt, to wit: upon a judgment against |