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M. owned a wagon and thereafter borrowed ments made in ignorance of the another of plaintiffs. The latter wagon

fact that the levy was on plaintiffs' he took apart and had removed, without plaintiff's knowledge, to the barn of B.

property. The latter wagon being levied upon as the

Walter J. Mears, for applt. property of M., defendant, hearing that Burke & Kilburn, for respts. it belonged to plaintiffs, made inquiry as

Held, That the charge was corto this of one of them, who replied that they did not own it. In an action by

rect. Plaintiffs were not called plaintiffs for a conversion, Held, That upon

to go to the Beman barn and plaintiffs were not estopped, unless the examine the wagon to see if it jury found that the plaintiff inquired of

was theirs. They answered the knew or ought to have known from his conversation with defendant that the questions truthfully as they underwagon inquired about belonged to plain- stood the matter. The case is diftiffs.

ferent from one where a forged Action for the conversion of a note is presented to the supposed wagon which belonged to plain- maker and he admits the signature tiffs. Defendant bought it upon a to be genuine. There the party sale, which sale was upon an exe- estopped has at hand all the means cution in an action by defendant to determine accurately what the and one Fleming against one Mil-truth is. Here it was properly lett. The sale was at the barn of left with the jury to say whether one Beman. Millett also owned a Edwin Webster knew or ought to wagon. He borrowed the one in have known that it was the wagon question of plaintiffs. After using of the Websters about which deit he took it apart and stored it in fendant was inquiring. There was his own barn; afterward he had it clearly a misunderstanding. removed to the Beman barn. Judgment affirmed, with costs. Plaintiffs did not know of the re- Opinion by Learned, P.J.; Lanmoval. When the levy was made don, J., concurs; Bockes, J., not Millett told the constable that the acting. wagon belonged to plaintiffs. Defendant directed that inquiry

CHATTEL MORTGAGE. should be made of plaintiffs, and N. Y. SUPREME COURT. GENERAL himself saw one of them. One of

TERM. FIFTH DEPT. the plaintiffs, Edwin Webster (be

Elizabeth M. Filkins, respt., v. ing in ignorance of the removal),

Thomas Cruice, applt. said they did not own any wagon at Beman's barn. Plaintiffs had a

Decided April, 1885. verdict. The court charged that

A chattel mortgage given to idemnify a plaintiffs were not estopped, un

surety upon an undertaking in an action less Edwin Webster knew or ought

against loss or damage, and conditioned

that it should be void when the mortgagor to have known from the conversa- should pay the damages, etc., that should tion with defendant that it was be adjudged against him, and providing plaintiff's wagon which was levied that the mortgagee, “if he should deem

himself in danger of losing the said debt, on; and that plaintiffs were not

by delaying the collection thereof until estopped by Edwin Webster's state

the expiration of the time limited for the payment thereof," might take possession, ant seized eight mules and harness, etc., authorizes the mortagee in taking and continued to hold the same at possession before any liability upon the

the time this suit was brought. undertaking has accrued. In the absence of any finding of fact tend.

That the causes of the seizure as ing to show that the mortagee did not stated by defendant were, subact in good faith in making the seizure, stantially, first, that he felt himor that he did not in fact deem himself in danger of loss, a finding of the court

self in danger of loss or damage that the seizure and detention was wrong- | by reason of becoming surety ; ful is unwarranted, and especially so second, that he had been requested when inconsistent with the facts found.

to make the seizure by plaintiff's Appeal from judgment entered husband and agent, who told him upon report of referee.

that the mules were scattered along Action was brought for the re- the line of the canal and were in covery of the possession of eight danger of being seized for their mules and harness, alleged to have keeping; that the action of rebeen wrongfully seized and de- plevin in which the undertaking tained by defendant.

signed by defendant was given was The referee found as facts, that ultimately settled by the parties in May, 1875, defendant became thereto, and this defendant was surety for plaintiff in an action of thereby discharged from his liabilreplevin brought against her, and ity without having incurred any as indemnity to the plaintiff in that loss or damage as such surety. As case against loss or damage, plain- a conclusion of law the referee tiff in this case delivered to defen- found that the seizure and detendant her chattel mortgage upon tion of the mules by defendant fifty-two mules and harness, condi- was wrongful, and that plaintiff tioned that it should be void in case was entitled to judgment. the mortgagor should pay the Defendant testified that plaindamages, etc., in an action brought tiff's husband told him that the by H. Walcott against her, and mules were being held along the indemnify and save harmless de- canal for their board, and urged fendant in this action from all him to seize the mules. Filkins damages, etc., by reason of signing testified that he was the husband the undertaking ; that the mort- and agent of plaintiff in the matgagee was authorized,“if he should ter, and did not contradict defenddeem himself in danger of losing ant as to this conversation. the said debt, or any part thereof, David F. Day, for applt. by delaying the collection thereof George M. Osgoodby, for respt. until the expiration of the time Held, That as there is no finding above limited for the payment of any fact tending to show that thereof, to take possession of the defendant did not act in good faith chattels before or after the expira- in making the seizure, or that he tion of the time aforesaid, and sell did not deem himself in danger of the same," etc.

loss, the legal conclusion is erroThat in September, 1875, defend

neous.

See Allen v. Vose, 20 W. Dig., 74; on exceptions taken at Circuit, S. C. in full, 31 Alb. Law J. 46; ordered heard at General Term in Jones on Chattel Mortg., § 431; first instance. Thomas on Mortg., 413.

The action was begun by A., B. If the grounds upon which de- and C., who were partners. The fendant made his seizure as stated cause of action alleged is slander by the referee were true in fact, i relating to and affecting the finanthen it appears affirmatively that cial condition and credit of plainhe acted in good faith and had tiffs as a firm. After issue joined good reason to believe himself in C. died, which fact appearing at danger of loss; and this is also the trial the complaint was disshown by the testimony. If de- missed, on the ground that the fendant in good faith seized the cause of action abated on and by property, at the time believing reason of the death of one of the himself to be in danger of loss, plaintiffs. then his detention would be law- Thomas Raines, for plff. ful until the action in which he James Breck Perkins, for defts. had become surety was settled. Held, Error. The complaint The referee fails to find that the de- charges a cause of action which mand for the mules was made after properly joined the partners as the settlement of the case, or that plaintiffs. 3 Bəs. & Pul., 150; 3 the settlement took place before C. & P., 196; S N. Y., 452. If the commencement of this action. the action had been brought by a There is, therefore, no finding of sole plaintiff who had died during fact that justifies the conclusion pendency and before verdict the that the detention of the property action would have then abated. was wrongful.

Whether C.'s death produced the Judgment reversed, and new same practical effect as the death trial ordered before another ref

before another ref- of a sole plaintiff would, is a novel eree.

question, but we answer it in the Opinion by Haight, J.; Barker negative, on principles deemed apand Bradley, JJ., concur.

plicable to the nature of a partner

ship and the relation of the surPARTNERSHIP. SLANDER. viving members of it. Practically, ABATEMENT.

the dissolution of a partnership by N. Y. SUPREME COURT. GENERAL

the death of a partner has relation TERM. FIFTH DEPT.

only to subsequent business trans

actions to a qualified extent. The Frederick A. Shale et al., v. Hen

relation of the survivors to the ry Schantz.

situation in which the death of the Decided April, 1885.

member left the property and busiThe death of one partner does not abate an ness enables them respectively to action of slander originally brought in manage and control the partnership the name of all the partners.

affairs as fully as before, until all Motion by plaintiff for new trial things necessary to winding them

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up are accomplished. Collyer on Pension money received in the form of a

draft and deposited in a savings bank is Part., 118, 5+6; 3 W. & S., 345;

exempt from execution under Code (iv. 38 Am. Dec., 768; 6 Cow., 441; 24

Pro., $ 1393. The interest earned by such X. Y., 570; + De G., M. & G., 512; deposit is also exempt. 2+ N. Y., 57+. . The joint relation Defendant Rowell was granted of the survivors is not broken into

a pension by the United States a tenancy in common by such government for his services as a death, nor are their relation and private soldier in the War of the equities impaired by it. 27 N. H.,

27 N. H., Rebellion. He received a draft 289; 59 Am. Dec., 376; 88 N. Y., from the pension agent which he 600. See Collyer on Part., $ 70+; endorsed and delivered to the Na13 Metc., 132; 88 X. Y., 60. In tional Bank of Malone, the other the prosecution of this action the defendant. He also delivered to survivors are exercising no new or the bank $100 in cash, pension derived powers and asserting no

moneys. He never had actual new or additional rights. 27 N.H., possession of said $1,000, except as 259. It is in equity only that an above stated. The action is by a entity of a partnership distinct receiver in supplementary proceedfrom its members is recognized. ings to reach these moneys. The 1 Story Eq. Jur., $ 680; 50 Vt., 668; complaint was dismissed. 20 N. J. Eq. (5 C. E. Gr.) 172; 18 Beman & Munsill, for applt. N. Y., 77.

Hobbs & Kilburn, for respts. The entire cause of action is in Held, That the moneys were exthe surviving plaintiffs because it empt under Code Civ. Pro., $ 1393. was in the firm; there has been no

It did not cease to be a pension bedemise requiring revival of the ac

cause deposited in a savings bank tion, but they are the beneficial

on interest. 7 Lans., 106. Its parties plaintiff, and the action identity is not lost because Rowell proceeds for their benefit. Code is now a creditor of the bank. The Civ. Pro., 758. See 13 N. Y., 322. . section is not intended to prevent

Dyckman v. Allen, 2 How., 17, the pensioner from using the distinguished.

money, and if the question was The action is still pending. New before us we should be disposed to trial granted, costs to abide event. hold that everything bought in

Opinion by Bradley, J.; Haight the ordinary way with this money and Childs, JJ., concur.

would also be exempt. The fact

that the pensioner never had the EXECUTION. PENSION. actual possession of the money, N. Y. SUPREME COURT. GENERAL

that is, that he endorsed the draft

and deposited it, can make no difTERM. THIRD DEPT.

ference. That is the ordinary James A. Stockwell, receiver,

manner in which business is done. applt, v. The National Bank of See, as to the exemption, 18 W. Malone et al., respts.

Dig., 355. Decided May, 1885.

Judgment affirmed, with costs.

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Opinion by Learned, P.J.; Lan- ground that the witness, as the don, J., concurs ;

Bockes, J., wife of an heir at law contesting the doubts.

will, was interested in the event of

the action, and was incompetent EVIDENCE. WITNESS. under $ 829 of the Code. “Q. How,

besides from what you saw, did you N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

learn her condition ; from seeing

her did you obtain the knowledge ? In re probate of the last will and

A. From herself. Q. What did testament of Charlotte D. Hewitt.

you learn from her in regard to Decided April, 1885.

her condition ? A. I used to hear As the wife of a contestant of a will, who her say that she was discouraged

is also an heir at law of the decedent, and didn't think she would be well would become vested with an inchoate right of dower in the lands of the de again ; I heard her say she paid cedent if the will should be declared void

out large sums for medicine and and refused probate, she is interested in

for doctors' bills. Q. Did what you the event of the proceeding, and so dis- saw and heard that night from her qualified, under $ 829 of the Code, from impress you as being rational or irtestifying as to personal transactions or

rational ? A. Rational. I had a communications with the deceased, for the purpose of showing her mental and conversation with her, it might physical condition : and this, although have been an hour after; when I both are legatees under the will.

went there no one was present. Appeal by the executor from de- Q. What was the conversation ? cree of surrogate's court refusing A. She said that she had been adprobate of the last will and testa- vised to make her will, and told ment of Charlotte D. Hewitt, de- that it would not shorten her ceased. Probate was refused upon days." the sole ground that the decedent F. D. Wright, for proponent was not of sound mind and memory and applt. at the time of executing said will. Tabor & Storke, for contestants

Melinda Hewitt was sworn as a and respts. witness on behalf of the contes- Held, That as the witness was tants, and testified that she was the wife of a contestant of the the wife of Jefferson Hewitt. It will who was also an heir at law previously appeared that Jefferson of the decedent, and would become Hewitt was an heir at law of the vested with an inchoate right of deceased and one of the contestants, dower in the real estate of the deand that she left both real and per- cedent if the will should be declared sonal estate. The witness and void, she was interested in the her husband were legatees under event of the proceeding, and so the will to the extent of $50 each. disqualified, under $829 of the The following questions and Code, from testifying as to personal answers were put and given, sub- transactions or communications ject to exceptions taken by respon- with the deceased. 30 Hun, 555. dent's counsel mainly upon the

The evidence was material and

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