The United States v. Lawrence.

that, as such, it was discharged by the death of Lawrence. But, the complaint sets forth a several obligation on the part of the obligors. It cannot, therefore, be said that the plaintiff has elected to treat the liability as joint, and, if a several lia bility can be enforced against the defendants, in this action, the complaint is good. The Code of Procedure of the State of New York (§ 120) provides, that persons severally liable upon the same obligation or instrument may, all or any of them, be included in the same action. This provision of the law of the State must be considered as the law for this Court, (Sawin v. Kenny, 3 Otto, 289; see, also, Chemung Canal Bank v. Lowery, 3 Otto, 72;) and by virtue thereof an action against all the obligors upon a bond like this can be maintained. By a further provision of the law of the State, (2 R. S., 113, § 2,) all actions upon contract may be maintained by and against executors, in all cases in which the same might have been maintained by or against their respective testators; and, by a still further provision of the same law, (Id., $3,) administrators are accountable to others to whom the estate was holden or bound, in the same manner as executors. The liability of the defendant Lawrence, as administratrix, to be sued upon this bond, is determined by those provisions of law.

The remaining question is, whether an action will lie, in the Courts of the United States, against several defendants, upon a several liability arising out of the same instrument, where the defendants are sued in different characters, and the judgment, although the same in amount, must be otherwise different, as here, where one of the defendants is sued as administratrix. This question, also, must be determined according to the law of the State, and, by the laws of the State, such an action is permitted. (Churchill v. Trapp, 3 Abb. Pr. Rep., 306.)

A further point has been suggested, not arising upon the face of the complaint, but which, as it has been discussed by counsel with reference to the terms of the bond, and the bond itself has been, by consent, submitted for consideration, may

The United States v. Lawrence.

here be disposed of. The point is this, that the bond sued on is the obligation of the firm of A. II. Mickle & Sons, and no action upon a partnership liability can be maintained against the representative of a deceased partner, without first exhausting the remedy against the surviving partner. No doubt exists, that, if this bond be the bond of the firm, it is impossible to maintain the action without averring in the complaint that Mickle, the surviving partner, is insolvent, and that all remedies against him have been exhausted. But the bond is not the bond of a firm. No firm name is attached to it, only the names of several persons. The fact that some of those persons were members of a firm does not alter the nature of the obligation nor create a liability on the part of the firm. The recital of the bond is, "We, William E. Lawrence and George B. Mickle, composing the firm of A. H. Mickle & Sons, as principal, and Charles Vandervoort and William D. McGregor, as sureties, are held," &c.; and this recital is relied on as conclusive to show that the obligation is that of the firm of A. H. Mickle & Sons, but I do not think the recital can control. The bond is executed by four different persons, each of whom has attached his seal and each of whom acknowledged the execution thereof, as his act. Each of these persons, by executing this bond, assumed a personal obligation to the United States, which can be enforced against him personally, notwithstanding the fact that the bond was given in the interest of the firm and to secure taxes that the firm might become liable for.

The demurrer is, therefore, overruled, with leave to plead, on payment of costs.

Asa W. Tenney, (District Attorney,) for the plaintiffs.

George W. Denton, for the defendant Lawrence.

The Providence County Savings Bank v. Frost.

THE PROVIDENCE COUNTY SAVINGS BANK AND OTHERS

vs.

JONATHAN F. FROST AND OTHERS. IN EQUITY.

A promissory note was signed by its maker in New York and transmitted by him to Rhode Island, to be discounted in that State. It was there discounted, and it had no inception as an obligation to pay until it was so discounted: Held, that the contract of the maker was made in Rhode Island, and that its legality or illegality, on the question of usury, was to be determined by the law of Rhode Island, and not by that of New York.

The decision in Providence Co. Savings Bank v. Frost, (8 Benedict, 293,) affirmed. (Before Jonsson, J., Southern District of New York, May 23d, 1877.)

JOHNSON, J. This is an appeal in equity from a decree of the District Court in favor of the complainants. That decree, in my judgment, is correct, both upon the facts involved and upon the law of the case. The defence is founded upon an alleged violation of the laws of New York against usury, and no other claim of illegality is made. The allegations of the answer show, that, though the notes in question were signed by their maker in New York, yet they were transmitted by him to Rhode Island, in order that their discount might be procured in that State. That they were so discounted, and that they had no inception as obligations to pay until that event, is entirely obvious, on the statement of the defendant Frost's answer, as well as upon the testimony. I concur entirely in the opinion of Judge Blatchford, (8 Benedict, 293,) upon the question of illegality, as dependent on the laws of New York against usury. On that subject the law of New York did not govern the contract. It was made in Rhode Island, and its legality or illegality is to be determined by the law of that State. On that subject, Tilden v. Blair, (21 Wallace, 211,) Andrews v. Pond, (13 Peters, 65, 77 to 80,) and Cockle v. Flack, (3 Otto, 344, 347,) seem to be conclusive that such is the

Terry v. Bamberger,

law of the Courts of the United States. The decree must be affirmed, with costs.

Francis N. Bangs, for the plaintiffs.

Elliott F. Shepard, for the defendants.

GEORGE E. TERRY, RECEIVER, &c., vs. LEOPOLD BAMBERGER.

The B. Co., of Connecticut, had in the hands of C., in New York, goods for sale on commission, on which C. had a lien as security for his liability on accom modation acceptances which he had given to the B. Co. A voluntary assignment in insolvency was made by C. to B., under the laws of New York. B. took possession of such goods, with notice that they belonged to the B. Co. Afterward the B. Co. tendered the acceptances to B., and demanded the goods, but B. refused to deliver them, and sold them. Their market value was $7,500. Subsequently T. was appointed receiver of the B. Co., under the laws of Connecticut, and tendered the acceptances to B., and demanded the goods, but B. refused to deliver them. T. then sued B. in this Court, and, at the trial, was allowed to amend his declaration by adding counts for a conversion prior to T.'s appointment: Held,

(1.) B. rightfully took possession of the goods of the B. Co., but torticusly converted them thereafter;

(2.) T., as receiver, had a right to sue B. in Connecticut for a conversion happening prior to T.'s appointment;

(3.) T. was entitled to a judgment for $7,500, and interest at 6 per cent. from the date of the demand by the B. Co., and the costs after the amendment, but should pay to B. his costs until the amendment.

(Before SHIPMAN, J., Connecticut, May 24th, 1877.)

SHIPMAN, J. This case was tried by the Court, the parties. having, by written stipulation duly signed, waived a jury. Upon said trial by the Court, both parties appeared by their counsel and with their witnesses, and were fully heard respecting the controverted questions of law and of fact. The facts which are found to have been proved are as follows: On or about August 12th, 1875, the firm of S. A. Castle & Co., of the city of New York, consisting of Samuel A. Castle,

Terry v. Bamberger.

Rufus E. Hitchcock, and Henry S. McGrane, being insolvent, made an assignment in insolvency of all their goods and effects, for the joint and equal benefit of their creditors, under the statute of New York, of April 13th, 1860, to Leopold Bamberger, of said city, who accepted said trust, gave bonds according to law, and entered upon his duties on August 12th, 1875. Previous to this time, said firm had been the selling agents, in said city, of the United States Button Company, a joint stock corporation, duly incorporated in pursuance of the laws of this State, and established at Waterbury. Said firm had in their store, on said August 12th, 1875, the manufactured goods of said company, which had been theretofore sent to them for sale upon commission, to a large amount, which goods were the property of said Button Company. The market value of said goods was $7,500. The company had not been in the habit of drawing against their consignments, but, prior to this date, had obtained from S. A. Castle & Co. their accommodation acceptances, to the amount of $22,500, and it was agreed between said parties, at the time when said acceptances were given, that said firm should have a lien on the goods which were from time to time unsold, as security against their liability upon said acceptances. These acceptances had been discounted for the benefit of said Button Company, and were then held and owned by the Waterbury National Bank. The goods of said company in the possession of S. A. Castle & Co. were specified in their inventory, which was duly made and filed in pursuance of the laws of the State of New York, under the head of "goods on hand on which allowances have been made and merchandize in stock, &c.," as "consigned by the United States Button Co.," and were appraised at $6,054. The assignee thus had notice of the ownership of the goods. Said Bamberger immediately took possession of said goods as his own, and as equitably belonging to the creditors of S. A. Castle & Co., and proceeded forthwith to sell them as rapidly as he was able, for the benefit of said estate. On September 24th, 1875, said Button Company took up and received said acceptances from the Waterbury National