vised Statutes, was pleaded as a defence. Plaintiffs' assignors had excluded this debt from their list of assets in their assignment in bankruptcy, and plaintiffs relied upon taking the case out of the Statute of Limitations by showing that this was done with the intention of reserving this debt for their own benefit and defrauding their creditors, and that defendants were parties to such fraud. The trial court in submitting the question of fraud to the jury charged, that, even if defendants knew or had presumptive knowledge of the omission of their debt from the list of assets of the assignors, that would not raise a presumption of fraud as to them, but that plaintiffs must establish a clear case of fraud against show that they colluded with the assignors for the purpose of defrauding the creditors before they would be liable in this action. To this charge plaintiffs excepted, and the jury rendered a verdict in favor of defendants.

circumstance to be considered in connection with any other evidence which tended to show collusion with the debtors to enable them to conceal the indebtedness or in any other wise to defraud their creditors.

Judgment reversed and new trial ordered, however, for failure of the court to submit to the jury the question, upon which there was evidence, whether such a new promise had not been made by defendants as would take the case out of the statute.

Opinion by Davis, P. J.; Brady, and Daniels, JJ., concur.

FRAUDULENT ASSIGN

MENTS.

Marsh, Wilson & Wallis, for applts.

Melville H. Regensburger, for respts.

Held, No error; that if defendants knew, or had presumptive knowledge of the mere fact that plaintiffs' assignors omitted their debt from their schedule, that would not be sufficient, unless there was some connection or collusion on the part of defendants with them to the disadvantage and injury of the creditors.

But the knowledge of defendants of this omission would be a

TERM. FIRST DEPT.

James Talcott, applt., v. Walter P. Hess, impld., respt.

Decided Dec. 21, 1883.

The intentional inclusion of a fictitious debt by a general assignor for the benefit of creditors in his schedule of debts, filed in pursuance of the act regulating general assignments, vitiates the assignment. The schedules when filed may be considered a portion of the assignment for the purpose of ascertaining whether or not a fraudulent intent existed.

No fraudulent intent on the part of the gen

eral assignee is necessary to make out a case of fraudulent assignment.

It is improper to ask a witness his opinion as to whether a general assignment made by another person was made in good faith. Appeal from judgment recovered on trial at Special Term.

Action by a judgment debtor after execution returned unsatisfied to set aside a general assignment for the benefit of creditors.

On the trial it appeared that the assignor in her schedule of debts included a debt to one Graham secured by a mortgage on certain property on Hall avenue, East New York, which mortgage had in fact been paid, and must have been known to have been paid, although the same was not discharged of record, and such assignor also, in her schedule of assets, included the Hall avenue property, which was specified as being subject to a mortgage for an amount stated.

On the trial, against objection and exception by plaintiff, assignor's husband was allowed to answer the question whether or not, in his opinion, the assignment was made by his wife in good faith. D. S. Riddle, for applt. L. Birdseye, for respt. Held, That the defendant Hazard, assignor, must have known in view of the size of her estate and the other circumstances in this case that the claim of $1,000 stated to be owing Graham, secured as was stated by a mortgage on her property on Hall avenue, was not a subsisting debt.

It had been paid, and the inference is that she knew it, and she offers no explanation of its inclusion in the schedule as a debt. Its inclusion was a fraud upon the unpreferred creditors and was designed to reduce the amount which. would go to them of the estate under the assignment and renders it void. 2 Sandf., 594; 36 Barb., 291; 44 Barb., 192; 40 N. Y., 383. The schedules will be considered a portion of the assignment for the

Vol. 18.-No. 14.

purpose of ascertaining the existence of any fraudulent intention. 85 N. Y., 404. No fraud on the part of the assignee need be shown. as an element of plaintiff's case. 57 Barb., 249. It was improper to allow the husband of the assignor to answer the question as to whether the assignment was made. in good faith.

Judgment reversed, new trial ordered, costs to abide event.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

SURETYSHIP.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

Thomas S. Grimwood, respt., v. William H. Wilson et al., applts.

Decided Dec. 21, 1883.

Where a surety signs a bond upon condition that it is not to be delivered until another person becomes a party to it, a delivery in violation of that condition will not be effective against him.

If a surety, on executing an undertaking required by the Code to be given in an action attaches to it the above mentioned condition, the filing of such undertaking in violation of said condition will be a defense to an action against the surety on the undertaking, provided the party to the action other than the one giving the undertaking was deprived of no right by the filing of such undertaking and if such undertaking is inoperative by reason of its failure to comply in form with the requirements of the statute under which it is given, the waiver of such defect by the party entitled to take advantage of it will not have the effect of binding the surety.

:

It seems, however, that if the filing of the undertaking in violation of the condition deprived the other party of a right, the surety would be liable.

This action was brought upon an undertaking given in an action to stay proceedings pending an appeal to the General Term of this court, executed by the appellant in that action and the defendant Wilson, as surety. The defense was that such undertaking was signed by Wilson on condition that some other responsible party should also sign it, and that that condition was not fulfilled, but that the undertaking was filed without a second surety having been obtained, without the knowledge or consent of Wilson. undertaking was made at a time when the old Code was in operation, which required, § 335, that it should be signed by two sureties, and consequently the undertaking sued upon did not operate as a stay. 63 How., 84. The respondent, however, accepted the undertaking and took no steps to enforce the judgment pending the appeal. The trial court refused to find the facts proved to sup

The

him. 32 N. Y., 445; 60 id., 150; 52 id., 570-4.

That since the undertaking deprives plaintiff of no right, and did not delay the collection of the judgment, the failure to comply with the conditions imposed by defendant, subscribing it as a surety, was a defense.

That the party in whose favor the undertaking was made could not, by waiving the requirements of the statute, fix a liability upon the surety greater than that which a compliance with the statute and with the conditions upon which he signed it would impose.

That if the undertaking had created a stay the surety would probably have been precluded by that circumstance from denying his liability upon it.

Judgment reversed and new trial ordered.

Opinions by Davis, P. J., and Daniels, J.; Brady, J., concurs.

GUARDIAN. BOND.

the reason that the execution and filing of the undertaking were such acts as precluded defendant from proving the alleged defense, and rendered judgment for plaintiff.

Sidney S. Harris, for applts. Wilbur F. Scott, for respt. Held, That where a surety signs a bond upon condition that it is not to be delivered until another person becomes a party to it, the delivery in violation of that con

SPECIAL TERM.

William A. McLaughlin et al., v. Mary Crawford et al.

The bond of a guardian ad litem appointed in a partition suit must run to the County Treasurer and not to the People.

Motion for approval of bond of guardian ad litem.

Action for partition commenced in Feb., 1883. in Feb., 1883. In June, 1883, one F. was appointed guardian ad litem of the infant defendants" on

his giving a bond according to law in the penal sum of $700," and executed a bond to The People of the State of New York, which was approved and filed.

Defendant's counsel having objected that said bond was not in due form; that it should have been in the name and official title of the Treasurer of Kings Co., under § 1585, Code Civ. Pro., or to the infants under § 475 of the Code, and that the infant defendants are not properly before the court, this motion was made to settle such objection.

Defendants' counsel argues that 4, tit. 3, chap. 5, part 3 of the Revised Statutes, providing that guardians ad litem in partition suits should execute a bond to the People, was repealed by Chap. 245, Laws of 1880; that § 1536, Code Civ. Pro., provides that "the security to be given by the guardian ad litem for an infant party in an action for partition must be a bond executed by him and one or more sureties;" that § 1585, Code Civ. Pro., provides that "a security taken under any provision of this article, except as otherwise specially prescribed therein must be taken in the name and official title of the County Treasurer of the county in which the property sold is situated;" that §§ 1536 and 1585 are both embraced in Art. 2, Tit. 1 of Chap. 14 of the Code, and hence no bond according to law has been given and the appointment of the guardian is not complete.

The guardian argues that § 1585 does not apply to any proceed

ings previous to a sale, but is a substitute for 2 R. S., 328, § 68; that § 475 does not apply to the bond in question, as that section only prescribes a form of bond to be given by a guardian on receiving money or property of the infant as prescribed in § 474; that the former provision as to the form of bond has been repealed and $1536 of the Code substituted in its place, which section does not prescribe to whom the bond shall be made, and that as there is now no statutory direction or rule of court in force prescribing to whom the bond shall be made, the practice of the court must be followed in this respect, which is (although based on a provision of the R. S. recently repealed), that it must still be made to the People of the state. Citing 5 Waits Pr. 68, 69; 1 id., 489; 2 Crary's Pr., 113, 580; 3 Barb. Ch. Pr., 709; 1 Abb. Forms, 62.

Henry Grasse, for plff. Theo. H. Friend, guardian in person.

Henry Day, for deft.

Barnard, J.-Sec. 1585 gives the form of bonds by guardians ad litem in actions for partition in cases except where otherwise specially prescribed in Article second, Code of Civ. Pro., in reference to partition.

As no other form is provided except to the County Treasurer, that is the true form of bond.

The guardian will file a new bond and an order can be made nunc pro tunc.

MARRIED WOMEN.

PLEADING.

N.Y. SUPREME COURT. GENERAL

TERM. SECOND DEPT.

plaintiff before maturity and that he is the owner and holder thereof; that said note was duly protested and notice given to the endorsers.

The K.s demurred to the com

Decided Dec., 1883.

Money loaned to a married woman enlarges her separate estate, and she is liable therefor.

A complaint set up a loan to a married woman; her promise to repay; her promissory note given therefor charging her separate estate; the endorsements thereon; ownership by plaintiff, protest and notice. Held, That a demurrer on the ground that the complaint did not state facts sufficient to constitute a cause of action was frivo

lous.

did not state facts sufficient to constitute a cause of action. The demurrer was stricken out as frivolous and judgment ordered for plaintiff.

E. C. Ripley, for applts.

G. F. Wellman, for respt. Held, No error; that the demurrer was plainly frivolous. Married women are no longer outlaws in this State. They incur liability on many contracts and among them those made for the

Action on a promissory note. The complaint stated that defendant F. M. K. is a married woman; that defendant M. loaned to her in October, 1881, $500, which she promised to repay with interest and for which she gave her promissory note, of which the following

is a copy:

for value received I promise to pay

which this was. The money went to enlarge the estate of a married woman and so it was beneficial thereto. A married woman has been held liable on her contract for the purchase of groceries purchased by her for consumption in her family, including her husband. 85 N. Y., 516.

The claim that

several causes of action are set forth in the complaint has no foundation.

Judgment affirmed, with costs.
Opinion by Dykman, J.; Bar-

sau Bank, New York City, the sum of five hundred dollars with use, which said sum I hereby make and intend a charge and lien on my separate estate; said indebtedness being for the benefit thereof.

FREDERICA M. KINNEY."

It also alleged that defendant J. P. K. endorsed the same to M., who endorsed and delivered it to

WILLS. REDEMPTION.

N. Y. COURT OF APPEALS. Weed et al., applts., v. Root, impl'd, respt.

Decided Dec. 11, 1883.

A devisee who claims a mere legal estate in real property of a testator, where there is