In the matter of the Empire City Bank.

lay;" and, within ninety days from his appointment, to declare a dividend. And it is only after such dividend, or rather within thirty days after its being declared, that the judge can refer it to a referee, on notice to all persons concerned, to apportion the claims remaining unsatisfied among the individual stockholders, and to report the proper judgment to be rendered against them. And an "order confirming such report is the only judgment against the individual stockholders that can be rendered; and the mode prescribed, for entering and executing it, the only "manner" in which the constitutional liability imposed upon such stockholders can be enforced. How, then, can an assignment, defeating all these objeets, both legislative and constitutional, retaining in effect, after refusal of payment, the whole control in the hands of the stockholder debtors, and shielding them from the claims of their creditors, be permitted to stand? or, at any rate, to stand in the way of the prescribed action of the court?

My duty, it seems to me, whether disagreeable or otherwise, is perfectly clear-to declare this bank, in the sense of the statute of 1849, insolvent, and to appoint a receiver of its property and effects. The United States' Trust Company, and several highly respectable individuals, have been nominated to discharge the trust. As no mere personal obligation can be equal to the mortgages and public stocks, to the amount of one million of dollars, pledged as security by the trust company, and as that institution has been created by law, among other objects, for the express purpose of meeting such requirements, I can feel no hesitation in making a selection between the nominees. Private preferences, in this as in most other judicial acts, must yield to public considerations. No man, and the counsel of no man, has a right to complain, that he or his particular friend is not appointed a receiver; especially where the assets, as in these bank cases, to be entrusted to his responsibility, are counted, not by tens, but by hundreds of thousands. There are absent parties interested as well as those who are present-minors, too, as well as adults; and those who rely, and have a right to rely, exclusively and without professional intervention, on the care and vigilance, and unbiassed judgment of the court.

In the matter of the Empire City Bank.

I make these remarks, not so much with reference to anything that has occurred in these immediate proceedings, as with reference to some incidents in the action of a kindred institution lately before me. In that case, the individual bond of the applicant, fortified by three sureties, in the penalty of $50,000, was tendered in connection with the request of several creditors and stockholders, as an all-sufficient and undeniable basis for the appointment, and no other creditors or stockholders, it was said, objected to the nomination. But no public notice had been given, and, for aught that appeared, a large number of persons, entitled to be heard, or at least to be considered, had no knowledge of the proceeding. This bond was accompanied by the affidavits, not of the principal, but of the three sureties, declaring themselves to be worth, one, fifty thousand, and the others each twenty-five thousand dollars, over and above all debts and liabilities. One of the two last, however, whose name was before me in a list of the assets of another bankrupt institution, appeared to be a defaulter in the shape of overdrafts to the amount of from one to two hundred thousand dollars. And the gentleman subsequently proposed as a substitute in his place, although justifying in the sum of $50,000, "in real and leasehold estate," added by implication that the property was subject to "incumbrances thereon;" and that this, in his opinion, was its value "over and above" them. It was suggested, in answer to these objections, that a clause should be inserted in the order directing the receiver, from time to time, to deposit all sums of $5,000 and upwards in the trust company.

But what additional safeguard is there in such a provision? Does not every order appointing a receiver contain, by implication if not expressly, a direction that all the funds, when collected, shall be kept in some safe depository?

The law, in requiring, as it does, proper "security" from a receiver in these cases, assumes that, although directed, he may not do his duty; and it is only in such a contingency that security is of any importance. And it dispenses with this prerequisite in the case of the appointment of the trust company,

Van Rensselaer agt. Layman and Benjamin.

only because "its whole capital stock, property, and effects, are, by law, made absolutely liable for such deposits, in preference to all other liabilities.

A like order must, therefore, be entered in this case (to be drawn up and submitted for settlement) as in that of the Knickerbocker and Suffolk banks.

SUPREME COURT.

STEPHEN VAN RENSSELAER agt. JAMES LAYMAN and HIRAM BENJAMIN.

Where two persons had become joint assignees of a lesser, who held under a lease in fee, subject to an annual rent, and the lessor was ignorant of the fact whether they had divided the premises between themselves, and, if so, in what proportions, and brought his action against both of them for the whole rent due, and alleged in his complaint that he did not know how, or in what proportions the defendants held such lands, and prayed judgment against the defendants jointly, if it should turn out that they were jointly liable, and severally, and for a proper apportionment between them, if it should appear that they held in severalty; and, after issue joined, it was proved that they held in severalty.

Held, that the plaintiff was entitled to recover against each defendant the rent due for the land so held by him.

In such case, the action, under the Code, is a substitute for a bill in equity, and and not for a suit at law; the object being to obtain a discovery by an examination of the defendants severally as witnesses, of the extent and relative value of the interest of each defendant in the lands leased.

Albany Circuit, Sept. 1853.

C. M. JENKINS, for plaintiff.

L. & N. W. FALK, for defendants.

PARKER, Justice. On the 6th of May, 1794, a lease in fee was executed by Stephen Van Rensselaer, deceased, to Sylva-. nus Cooper and Enoch Cooper, for 261 acres of land in Rensselaerville, known as Lot No. 241, in which was reserved an

Van Rensselaer agt. Layman and Benjamin.

annual rent; and, on the 15th January, 1808, the said Van Rensselaer leased to Hezekiah Watson and Job Sisson 220 acres of land in the same town, known as Lot No. 261, with a like reservation of rents. The plaintiff has become entitled, by devise, to the interest of the lessor in both these leases.

In 1848, the defendants purchased and became the assignees of 100 acres of Lot No. 261, and 26 1-2 acres of Lot No. 241, and on the 12th day of March, 1848, the defendants divided said parcels between themselves, by executing quit-claim deeds to each other, whereby said Layman became owner of 47 47100th acres of Lot No. 261, and 16 1-2 acres of Lot 241, and Benjamin became the owner of 52 53-100th acres of Lot 261, and about 10 acres of Lot 241; and since that time the defendants have owned and possessed such divided portions in severalty, until some time in the spring of 1852. The rents due on such portions from 1848 to 1852, inclusive, amount to $124.14, and the plaintiff claims to recover one half that sum against each defendant.

On these facts it is clear that a separate action might have been maintained against each of these defendants, to recover the rent upon the lands that had thus come to him as the assignee of the lessee; but the defendants' counsel contends that a recovery against each defendant separately cannot be had in this action against both defendants.

This is not a case of uniting actions against different persons upon several contracts. The plaintiff's right to recover de pends upon privity of estate, and not upon privity of contract. (2 Barb. S. C. R. 644.) Each defendant is liable to the extent of his proportionate share of the land leased, because he has become assignee of such land.

If this action is to be regarded only as a substitute for an action at law, it will not admit of several judgments against the defendants; for two several and distinct causes of action against different persons cannot be joined in one action under the Code, any more than they could have been under the former practice. Such misjoinder would be fatal on demurrer, if it appeared on the face of the complaint. (Code, § 144, sub. 5.)

Van Rensselaer agt. Layman and Benjamin.

But the plaintiff claims to recover several judgments, on the ground that this action is a substitute for a suit in equity, and not for an action at law. It was held in Livingston agt. Liv ingston, (4 John. Ch. R. 287,) that rent might be recovered in equity where the remedy had become difficult or doubtful at law, or where there was perplexity or uncertainty as to the title, or as to the extent of the defendant's liability. This jurisdiction of a court of equity is well established. (2 Brown C. C. 338, 518; 1 Atk. 598; 13 Price, 721; Com. Dig. Chancery 4, n. 1 Rent; Adam's Equity, 238, n. 1; 1 Freem. Ch. R. 99; 1 Story Eq. Juris. §§ 684, 686.) Before an action for a discovery was abolished by the Code, (Code, § 389,) a bill would have been properly filed on the facts of this case for a discovery. But, according to the present practice, the plaintiff could only allege the facts as far as they were within his knowledge, and then obtain a discovery by examining the defendants as witnesses on the trial. Here the plaintiff was ignorant of the extent of the defendants' title, and of the extent of their liability. How much of the land they owned, and whether they had divided it among themselves, and to what extent, and in what proportions, were facts exclusively within the knowledge of the defendants, and could only be ascertainnd by an examination of the defendants. The plaintiff accordingly brought his action against both defendants for the whole rent due, and alleged in his complaint that he did not know, and could not state, in what proportion the defendants held such lands, and prayed judgment against the defendants jointly, if it should turn out that they were jointly liable, or severally for their proper portions, and for a proper apportionment between them. After issue joined, the facts were admitted by a stipulation of the defendants' attorneys, without the necessity of a personal examination of the defendants. A discovery was thus virtually obtained, by which the plaintiff ascertained that the lands had been divided between the defendants, and the extent of such apportionment.

The fact, that an apportionment was necessary, made the case a proper one for equity jurisdiction. (1 Story Eq. Juris.,