Page images

contracts to do a thing and that of one who merely receives a delegation of authority to act for another is a fundamental one, applicable to the present case. If the agency is an undertaking to do the business, the original principal may look to the immediate contractor with himself, and is not obliged to look to inferior or distant under-contractors or subagents when defaults occur injurious to his interest. Whether a draft is payable in the place where the bank receiving it for collection is situated, or in another place the holder is aware that the collection must be made by a competent agent. In either case there is an implied contract of the bank that the proper measures shall be used to collect the draft, and a right on the part of its owner to presume that proper agents will be employed, he having no knowledge of the agents. There is therefore no reason for liability or exemption from liability in the one case which does not apply to the other. And while the rule of law is thus general, the liability of the bank may be varied by consent, or the bank may refuse to undertake the collection. It may agree to receive the paper only for transmission to its correspondent, and thus make a different contract, and become responsible only for good faith and due discretion in the choice of an agent. If this is not done, or there is no implied understanding to that effect, the same responsibility is assumed in the undertaking to collect foreign paper and in that to collect paper payable at home. On any other rule no principal contractor would be liable for the default of his own agent, where from the nature of the business, it was evident he must employ subagents. The distinction recurs between the rule of merely personal representative agency and the responsibility imposed by the law of commercial contracts. This solves the difficulty and reconciles the apparent conflict of deoision in many cases. The nature of the contract is the test. If the contract be only for the immediate services of the agent, and for his faithful conduct as representing his principal, the responsibility ceases with the limits of the personal services undertaken. But where the contract looks mainly to the thing to be done, and the undertaking is for the due use of all proper means to performance, the responsibility extends to all necessary and proper means to accomplish the object, by whomsoever used.

We regard as the proper rule of law applicable to this case, that 'declared in Van Wart v. Woolley, 3 Barn. & C. 439, where the defendants, at Birmingham, received from the plaintiff a bill on London, to procure its acceptance. They forwarded it to their Loudon banker, and acceptance was refused, but he did not protest it for non-acceptance or give notice of the refusal to accept. Chief Justice Abbott said: "Upon this state of facts it is evident that the defendauts (who cannot be distinguished from but are answerable for their London correspondent) have been guilty of a neglect of the duty which they owed to the plaintiff, their employer, and from whom they received a pecuniary reward for their services. The plaintiff is therefore entitled to maintain his action against them, to the extent of any damage he may have sustained by their neglect." In that case there was a special pecuniary reward for the service. But upon the principles we have stated, we are of opinion that by the receipt by the defendant of the drafts in the present case for collection, it became upon general principles of law, and independently of any evidence of usage or of any express agreement to that effect, liable for a neglect of duty occurring in that collection, from the default of its correspondent in Newark.

What was the duty of the defendant, and what neglect of duty was there? An agent receiving for collection, before maturity, a draft payable on a particular day after date, is held to due diligence in making

presentment for acceptance, and if chargeable with negligence therein, is liable to the owner for all damages he has sustained by such negligence. Allen v. Suydam, 20 Wend. 321; Walker v. Bank of the State of New York, 9 N. Y. 582. The drawer or indorser of such a draft is indeed not discharged by the neglect of the holder to present it for acceptance before it becomes due. Bank of Washington v. Triplett, 1 Pet. 25, 35; Townsley v. Sumrall, 2 id. 170, 178. But if the draft is presented for acceptance and dishonored before it becomes due, notice of such dishonor must be given to the drawer or indorser, or he will be discharged. 3 Kent Com. 82; Bank of Washington v. Triplett, 1 Pet. 25, 35; Allen v. Suydam, 20 Wend. 321; Walker v. Bank of the State of New York, 9 N. Y. 582; Goodall v. Dolley, 1 Term R. 712; Bayley Bills (2d Am. ed.), 213. Moreover the owner of a draft payable on a day certain, though not bound to present it for acceptance in order to hold the drawer and indorser, has an interest in having it presented for acceptance without delay, for it is only by accepting it that the drawee becomes bound to pay it, and on the dishonor of the draft by non-acceptance, and due protest and notice, the owner has a right of action at once against the drawer and indorser, without waiting for the maturity of the draft; and his agent to collect the draft is bound to do what a prudent principal would do. 3 Kent Com. 94; Robinson v. Ames, 20 Johns. 146; Lenox v. Cook, 8 Mass. 460; Ballingalls v. Gloster, 3 East, 481; Whitehead v. Walker, 9 Mees. & W. 506; Walker v. Bank of the State of New York, 9 N. Y. 582. In view of these considerations, it is well settled that there is a distinction between the owner of a draft and his agent in that though the owner is not bound to present a draft payable at a day certain, for acceptance before that day, the agent employed to collect the draft must act with due diligence to have the draft accepted as well as paid, and has not the discretion and latitude of time given to the owner, and for any unreasonable delay, is responsible for all damages sustained by the owner. 3 Kent Com. 82; Chit. Bills (13th Am. ed.), 272, 273.

The defendant being thus under an obligation to present the drafts for acceptance, and having in fact presented them through the Newark bank to Conger, the secretary of the company, was bound not to take the acceptances it did, but to treat the drafts as dishonored. The plaintiff was at least entitled to au acceptance in the terms of the address on the drafts. Walker v. Bank of the State of New York, 9 N. Y. 582. The defendant had notice, from the description of the drafts by the words "Newark Tea Tray Co." in the letters sending them for collection, that the plaintiff regarded the drafts as drawn on the company; and the defendant recognized its knowledge of the fact that the drafts were drawn on the company by describing them by the words "Newark Tea Tray Co.," in its letters to the Newark bank, in every instance but two. If on the face of the drafts, the address was ambiguous, it was not for the defendant to determine the question, as against the plaintiff, by taking an acceptance which purported to be the acceptance of Conger individually, especially in view of the information it had by the words "Newark Tea Tray Co." in the letters sending the drafts to it for collection. It appears that the drafts were discounted by the plaintiff as drafts on the company, and if it could have had an acceptance in the terms of the address, it would in a suit against the company have been in a condition to show who was the real acceptor. But with the information given to the Newark bank by Conger, while that bank had in its hauds for acceptance drafts drawn in the same form as those here in question, that he would not accept such drafts in his official capacity as secretary, the Newark bank chose to take accept

ances individual in form. This was negligence, for which the defendant is liable to the plaintiff in damages, no notice of dishonor having been given. The defendant was bound to give such notice to the plaintiff. Walker v. Bank of the State of New York, 9 N. Y. 582.

The question as to whether the company would have been liable on the drafts, if they had been accepted in the terms of the address, is not oue on the determination of which this suit depends; nor do we find it necessary to discuss the question as to whether, on the face of the drafts, the company or Couger individually is the drawee. The very existence of the ambiguity in the address, and of the question as to whether the company would be liable on an acceptance in the terms of the address, is a cogent reason why the defendant should not be allowed, without further communication with the holder, to do acts which may vary the rights of the holder, without responding in damages therefor. The risk is on the defendant and not on the plaintiff. It is therefore plain that the judgment must be reversed. But judgment cannot be now rendered for the plaintiff for damages. There must be a new trial. Although there is a special fiuding of facts, it does not cover the issue as to damages. No damages are found. The action is one for negligence, sounding in damages. Although the complaint alleges that the drawers and the indorser are discharged for want of notice of non-acceptance, and although it is found that the drawers were in good oredit when the drafts were discounted, and that the drawers and indorser had become insolvent by the thirteenth and nineteenth of October, 1875, there is nothing in the finding of facts on which to base a judgment for any specific amount of damages. On the new trial that question will be open, and we do not intend to intimate any opinion on the subject.

The judgment of the Circuit Court is reversed, with direction to award a new trial.

[S. C., 17 Am. Rẹp. 663.-FD.]




B. having been sued on his bond, conveyed to his wife his entire real estate, being all the property he possessed. The consideration for the deed was various sums of money alleged to have been loaned by the wife to the husband; these with the interest thereon made up the amount. Shortly after the execution of the deed, judgment was recovered against B. It did not appear that the loans were from the separately settled estate of the wife, and the transactions were while the common-law relation of husband and wife was in force. On a bill filed to have the deed declared void as in fraud of the complainants and the other creditors of the grantor Held, That the deed was good as between the husband and wife, but void as against the creditors of the husband subsisting at the time of its execution. ROSS-APPEALS from the Circuit Court for Prince

[ocr errors]

The bill of complaint in this case was filed in the name of the State of Maryland for the use of William Z. Edelen, and of William Z. Edelen, assignee of Della A. Edelen, against William B. Bayne and Elizabeth Bayne, his wife. The object of the suit was to have declared void a deed made by the said William B. Bayne to his wife on the 7th of September, 1868, as in *Appearing in 62 Maryland Reports.

fraud of the complainants and the other creditors of the grantor, subsisting at the time of its execution, and for such other relief as the case might require. The opinion of this court, together with the dissenting opinion, furnish a sufficient statement of the facts of

the case.

The Circuit Court (Brooke, J.,) passed a decree vacating the said deed, and directing the property mentioned therein, or so much thereof as might be necessary, to be sold, and the proceeds to be applied, "first to the expenses of this case; secondly, to the payment of the defendant, Elizabeth Bayne, of the sum of $600. with interest thereon from July 1, 1859. to September 7, 1868, and of the sum of $1,200, and of $300, without interest; thirdly, to the payment of the creditors of the defendant, William B. Bayne, subsisting at the time of the execution of the said deed, according to their respective rights and priorities; and fourthly, the residue, if any, to be paid over to the defendant, Elizabeth Bayne.

[ocr errors]

From this decree both parties appealed. The opinion states the case.

Joseph K. Roberts and William H. Tuck, for Bayne and wife.

F. Snowden Hill and Frank H. Stockett, for the State, use of Edelen.

ALVEY, C. J. In this case the deed by the husband to the wife of all his real estate was made in September, 1868, for the recited consideration of $8,000. It was made after suit had been brought by the complainants now seeking to have the deed declared void as against themselves, and but a short time before they recovered judgments against the grantor. The deed is sought to be sustained as against these creditors by proof, by the husband and wife alone, that so far back as the years 1844, 1845 and 1846, and upon several occasions subsequently, the husband had received several sums of money of the wife which, he had promised at the time of receiving the same to repay to the wife; but not having paid the same, when finding himself pressed by his creditors, and as he says, importuned by his wife, he summed up the various amounts received from the latter, with interest, which amounted to near about as much as the principal, aud made that the consideration of the deed.

In the answer of the defendants to the bill, instead of a particular and detailed statement of the transac tions between the husband and wife, in regard to the loans of the money made the consideration of the deed, they aver, in general terms, that after their marriage in 1844, and from that time, and at sundry times, dowu to the time of the execution of the deed, the wife had received from her father, in his life-time, and from his estate after his death (which occurred in 1858) various sums of money, which she at different times agreed to loan, and did loan, to her husband with the promise from him, exacted by her, that he would repay with interest whenever she might thereafter desire or need the same; and that the husband had repeatedly since promised to secure and repay her the money so loaned.

They further aver that since the execution of the deed the husband has been living upon the land con veyed, together with his wife, using and cultivating the same as her agent, and for her use and benefit, and that the proceeds therefrom have been applied, with the consent of the wife, to the support of herself and family.

As was very justly said by the Supreme Court of the United States in Seitz v. Mitchell, 94 U. S. 582, and repeated by this court in the case of Hinkle v. Wilson, 53 Md. 292, "purchases of either real or personal property made by the wife of an insolvent debtor during cover


are justly regarded with suspicion, unless it clearly appears that the consideration was paid out of her separate estate. Such is the community of interest between husband and wife; such purchases are so often made a cover for a debtor's property; are so frequently resorted to for the purpose of withdrawing his property from the reach of his creditors and preserving it or his own use, and they hold forth such temptations for fraud that they require close scrutiny. In a contest between the creditors of the husband and the wife there is, and there should be, a presumption against her which she must overcome by affirmative proof. Such has always been the rule of the common law; and the rule continues, though statutes have modified the doctrine that gave to the husband absolutely the personal property of the wife in possession, and the right to reduce into his possession and ownership all her choses in action." And in support of the doctrine just stated many decided cases are referred to by the court.

In this case the rights of the parties and the validity of the transactions involved depend upon the law as it stood before the adoption of the Code in 1860.

By the common law, before it was modified by the adoption of the Code, as between husband and wife, the personal property of the latter, such as money, goods and chattels, became vested immediately and absolutely in the husband, and he could dispose of it as he pleased. Co. Litt. 351, b; 2 Kent Com. 143. And if a debtor of the married woman paid to her during coverture the debt, or if money was given to her by any third person, unless it was expressed to be to her sole and separate use, the money so received ¡inured to the benefit of the husband, and became his property absolutely. And so the husband was entitled absolutely to all sums of money received by a third person on account of his wife during coverture. These principles are among the elementary doctrines of the common law, and they have been adopted and applied by repeated decisions of this court. Turton v. Turton, 6 Md. 375, 381; Taggart v. Boldin & Thayer, 10 id. 104.

If therefore it be conceded, as it may well be, upon the proof in the case, that the money came to the wife and was received or paid over to the husband, as and in the manner stated in the answer, and as testified to by the wife, still there is nothing to show that it came to the wife as her sole and separate estate, and consequently it vested in the husband at once and absolutely, by virtue of his marital relation. Unlike a chose in action belonging to the wife, which did not vest absolutely in the husband except at his own election to reduce it into possession, the receipt of the money by the wife was the receipt of the same to the use of the husbaud, and the money became his instantly it was received by the wife. Carroll v. Lee, 3 G. & J. 504.

It would doubtless have been competent to the husband to settle the money upon the wife, to her sole and separate use by gift; but as has been said by this court, "the act by which he divests himself of his property must be clear and unequivocal" (Thurton v. Thurton, supra); or as was said by the late Chancellor Johnson, to establish such gift from the husband to wife, courts of equity require clear and incontrovertible evidence. George v. Spencer, 2 Md. Ch. Dec. 353, 360. The marital rights of the husband having attached, the mere promises of the husband to the wife to repay her the various sums of money received by him were without consideration, and could form no ground for a valid claim against him. Oswald v. Hoover, 43 Md. 368; Plummer and Wife v. Jarman, 44 id. 637; Sabel v. Slingluff, 52 id. 132, 135.

Such promises amounted to nothing more than mere voluntary agreements to make future donations to

the wife by the return of like sums of money. Being without consideration, they could not be enforced, for a mere promise to make a voluntary gift is not sufficient. To make the intended gift effectual the intention must have been executed; and the evidence should show clearly and distinctly that the husband had by positive act divested himself of his right of property and vested the same in the wife.

This case is entirely unlike those cases where the husband contracts with his wife in respect to her separate estate, or where the fund in respect to which the promise is made is or could be made, subject to the control of a court of equity, and the promise is to do what the court would compel the husband to do, by virtue of the wife's right to equitable settlement out of the fund; or where in consideration of the wife's agreement to sell her real estate, and allow the husband to receive the proceeds thereof, under a promise to invest such proceeds for her benefit, or to pay her the money; as in all such cases the promise is founded upon good and sufficient consideration, and the relation of debtor and creditor is created as between the husband and wife. The propositions find apt and pointed illustration in the cases of Stevenson v. Reigart, 1 Gill. 1; Bowie v. Stonestreet, 6 Md. 418; Stockett v. Holliday and Wife, 9 id. 480; Jones v. Jones & Wife, 18 id. 464; Kuhn v. Stansfield, 28 id. 210; Mayfield v. Kilgour, 31 id. 242; Oswald v. Hoover, 43 id. 360; Crane v. Barkdoll, 59 id. 534.

The case of Stevenson v. Reigart, 1 Gill. 1, is much relied upon by the defendants, but that case is not an authority in a case like the present. In that case certain executors held the legacy, a chose in action, due the wife as her trustees, and they paid over such legacy to the husband upon a special agreement with them, that the money should be invested for the exclusive benefit of the wife. It was upon the validity of this agreement with the trustees that the case turned. The court declared that the husband received the money from the trustees on the agreement, not by virtue of his marital rights, but as trustee for his wife. He received the money, say the court, upon a special trust and confidence that it would be invested for her benefit; he received it as her trustee, and upon his failure to make that investment, the consideration upon which he received it failed, and the wife had a right to consider it as so much money had and received for her use. That case therefore has but slight, if any, the remotest bearing upon this case.

No case could well occur where greater injustice would be done to the creditors of the husband by upholding the deed of the wife than in this. Bayne, the husband, became surety on the guardian's bond of Monroe, given for the protection of the complainants, then minor children, in 1855. He was then the owner of the farm that he subsequently conveyed to his wife. We may well suppose that it was upon the faith of such ownership of the farm that he was accepted as surety. So soon as he was sued on the bond in 1868 he at once divested himself of his entire property by the deed to his wife, and from the position of owner he descended to and assumed that of agent, but still remaining in the full possession and enjoyment of the farm, while his creditors were left without any possible means from which to get payment of their just demands. This transfer of his property is sought to be supported by proof of mere verbal promises made to the wife, some of the most material of them twenty odd years before the making of the deed.

Mr. and Mrs. Bayne were both examined and re-examined as witnesses, and their several statements are not in all respects consistent as to the circumstances under which the money was obtained by Mr. Bayne. Their respective statements in regard to the making and delivery of the deed are essentially variant. And

though this may be attributed to the imperfection of memory, yet it shows the great necessity for caution, and the danger in proceeding upon such evidence after such great lapse of time.

[Omitting discussion of evidence.]

According to the established legal principles, as we have seen, the money became the property of the husband immediately upon its receipt by the wife, as the law stood at the time. His promises to return it to the wife where nothing more than promises to restore money to her possession, which the law had vested in him as his own absolute property; and such promises created no legal obligations that could be enforced against the husband. At most only the money coming to the wife after the act of 1853, ch. 245, could be protected from the debts of the husband.

Upon the whole this deed, so manifestly in preju. dice of the rights of the complaining creditors, ought not to stand as against them. The deed is perfectly good as between the husband and wife, but not as against the subsisting creditors of the husband at the time the deed was made. The decree of the court below is as favorable to the wife as she could reasonably ask it to be; and but for a technical objection taken to the frame of the bill, we should simply affirm the decree. But the bill is erroneously filed in the name of the State as legal plaintiff, for the use of the parties beneficially entitled to the judgments; thus following the form of the recovery at law upon the bond.


is clearly an irregularity, as the State should not have been introduced as a party; but it is such an irregularity as may be corrected by amendment. We shall therefore, without affirming or reversing the decree remand the cause that the amendment in the particulars mentioned may be made, and that a decree similar to the one appealed from be passed by the court below. Cause remanded under art. 5, sec. 28 of the Code. Yellott, J., dissents.


CRIMINAL LAW-FORGERY- WIFE AS PRINCIPALPRESUMPTION OF COERCION-EVIDENCE-CODE CRIM. PROC.,$ 399-TESTIMONY OF ACCOMPLICE.-Defendant, with her husband and another, was indicted for forgery in the third degree, in raising a check. It appeared on the trial that defendant suggested the idea of obtaining the check, and went alone to a store where she procured a check for $6, upon the representation that she desired to send the money that evening to her sister or mother in Philadelphia, and she could not obtain an order at the post-office, as it was closed. This check she delivered to her husband, who in her presence, erased with an acid the name of the payee and the amount. Subsequently, when it did not appear that she was present, the check was filled in for the $165.50, the money was obtained thereon, and $74 of that sum paid to defendant. Held, that the evidence was sufficient to authorize a finding that defendant's participation in the affair was voluntary and under no coercion from her husband, and also was sufficient to justify a conviction of defendant as a principal, not simply as an accessory before the fact. The rule undoubtedly is, that whatever of a criminal nature the wife does in the presence of her husband is presumed to be compelled by him (1 Bish. Crim. Law [7th ed.], § 359); but this presumption is prima facie and not conclusive, and if it appears that she was not urged or drawn to the offense by him, but was an inciter of it, she is liable as well as he. Seiler v. People, 77 N. Y. 413; Goldstein v. People, 82 id. 233. (2) The proof as to what occurred, after defendant returned with the check, in reference to the alteration thereof, was the

uncorroborated testimony of an accomplice. Held, that there was other testimony tending "to connect the defendant with the commission of the crime," sufficient to meet the requirements of § 399 Code Crim. Proc., prohibiting a conviction on the uncorroborated testimony of an accomplice. People v. Ryland. Opinion by Miller, J. [As to coercion see 1 Allen, 4; 2 Gray, 510; 11 id. 437; 38 N. Y. 178; 13 Eng. Rep. 453; 42 Vt. 495; 59 Me. 298.-ED.]

[Decided Oct. 28, 1884. affirming 16 W. Dig. 232.] TRUST-DECLARATION OF STATUTE OF FRAUDS— PAROL LEASE-SPECIFIC PERFORMANCE- ASSIGNMENT FOR CREDITORS RIGHT то LEASE PASSES TO ASSIGNEE DISTRIBUTION OF PROCEEDS.-If the declarations of a party can, under any circumstances, be received to raise a trust or create an interest in lands in another, they must be subject-matter, and the extent of the beneficial interclear and explicit, and point out with certainty the est. Equity cannot, under any circumstances, compel the performance of a parol agreement vague in its terms, and standing upon testimony of the accuracy of which the witness is himself uncertain. In an action brought by plaintiffs as judgment creditors of the defendant R., to have certain real estate in which they claimed R. had an interest charged with the paythe owner of the land, by procurement of the defeudment of their judgment, the court found that R. being ant A. F., conveyed it to the wife of the latter, by deed, reciting a consideration of $2,300; that as a further consideration it was agreed between R. and A. F. that the former should have the use for three years of the cellar and first floor of the building to be erected upon the premises. The only evidence upon which the last finding was made was testimony of admissions made by R. after the conveyance and in the absence of A. F., except the testimony of one witness as to a conversation with A. F. and R., in which the former said he had bought the premises, and that R. was to have the use for "either several years or two or three years," the witness could not say which, as it was out of his memory. Held, that the evidence was insufficient to sustain the finding; but if the evidence was sufficient to establish an agreement to give A. F. the use of any portion of the premises, it was in the nature of a lease, and as it was by parol, and for more than a year, it was void by the statute of frauds; and that it was not such a contract as equity would decree performance of after the execution of the deed, and before the recovery of plaintiffs' judgment. R. made a general assignment for the benefit of his creditors. The assignee accepted the trust, entered upon the performance of his duties, and it appeared that the assignor's debts greatly exceeded his assets. Held, that if R. was then entitled to a lease, or to any benefit in the premises, the right passed to the assignee, and plaintiffs had no claim which they could enforce against it. Emigrant Industrial Savings Bank v. Roche, 93 N. Y. 374; Spring v. Short, 90 id. 538. If such an assignee refuses in a proper case to proceed and get in the assigned property, the creditors collectively, or one in behalf of all who may come in and join, may compel the execution of the trust in equity. So he could be removed and a more efficient trustee appointed, but in either case a decree for a single debt would be erroneous. Nor is it possible for an assignee by any word or act of disclaimer, to relieve himself from the obligation to collect the estate and distribute it according to the terms of the assignment. He is bound to all the creditors, and their rights cannot be varied at his option. If otherwise, a preference might be created when the assignment was silent, and by refusing to sue or enforce a right of property, as the respondent alleges was done in the case before us, an

assignee could permit a favored creditor to absorb the property of the estate and gain priority over others. No doubt the creditor might also sue if the assignee improperly refused to do so. But if successful, the decree must follow the assignment, and the fruits of the recovery be distributed according to its terms. Bate v. Graham, 11 N. Y. 237; Everingham v. Vanderbilt, 12 Hun, 75; Dewey v. Moyer, 72 N. Y. 70; Spring v. Short, supra. The case of Fort Stanwix Bank v. Leggett, 51 N. Y. 554, cited by the respond. ents, does not aid the plaintiffs. In that case the assignee was not a party, and no objection was made by answer or on the trial, nor did it appear that there were other creditors having an interest in the fund. Here there are an existing assignment, an acting assignee, and creditors other than the plaintiffs. Crouse v. Frothingham. Opinion by Danforth, J.

[Decided Oct. 21, 1884.]

ECOLESIASTICAL LAW-ACT or 1813-PASTOR'S SALARY-METHOD OF RAISING.—(1) The provisions of the Act of 1813, ch. 60, § 48, providing "for the incorporation of religious societies," which prescribe the method of fixing the salary to be paid to a minister of a corporation organized under it are exclusive and imply a prohibition of any other method. It is obvious from an examination of the record that there was no compliance with any of these provisions, and upon a former trial a nonsuit had been granted for that reason. It was denied upon this occasion in deference to the decision of the General Term, by which the nonsuit had been set aside (15 Hun, 340), and a ruling made that notwithstanding the statute it was competent for the parties to make the contract in such other manner as they saw fit. We think such a construction destroys the efficacy of the act. It removes the check which was intended to be put upon the power of trustees (Petty v. Tooker, 21 N. Y. 267), and takes from the select body of corporators (People v. Tuthill, 31 N. Y. 550), who were considered by the Legislature the proper persons to deal with the matter, and so were authorized to determine the amount of salary to be paid, the power to do so, by conferring it upon the congregation at large, and leaves the evidence of the obligation to be determined by parol evidence, rather than the written instrument upon which the statute authorizes payment to be made. When a statute covers the whole subject, and prescribes the persons who may bind a corporate body and the manner in which they may bind it, resort cannot be had to other instrumentalities. The designation of certain agents and methods for the doing of an act implies a prohibition of any others. People ex rel. Atty.-Gen. v. Utica Ins. Co., 15 Johns. 357; New York Fireman's lus. Co. v. Ely, 2 Cow. 678; Crocker v. Whitney, 71 N. Y. 161; Donovan v. Mayor, 44 Barb. 180. Accordingly, where the salary of a minister of a Methodist Episcopal church was fixed by the quarterly conference, instead of as prescribed by said act, held, that uo contract obligation was imposed upon the church, and that an action was not maintainable against it to recover a balance unpaid of the salary so fixed. (2) Under the rules and regulations of the "Methodist Episcopal Church of the United States," enacted by its general conference, no contract relation exists between a society belonging to tha church and its minister. The society is simply a contributor to a general fund raised by voluntary not enforced contributions, for the support of ministers, and no implication arises of any promise on its part of compensation to the minister assigned to it, from the fact that service is rendered by him and received by the society. The minister renders service not upon an agreed salary but upon au allowance for support to be paid from such general fund. (3) In the absence, at least, of some valid ex

press agreement, both parties will be deemed to have acted under the obligation of duty imposed by said rule. (4) The said rules and regulations are not in conflict with said act, or the general law of the State, aud are binding upon the assenting members, and as to them have the force of contracts. Landers v. Franck St., etc., Methodist Church. Opinion by Danforth, J. [Decided Oct. 28, 1884.]


INTEREST-WHEN AGENT LIABLE FOR.-Money voluntarily left by a principal in the hands of an agent lies without interest until some request for it or occurrence changes the character of the detention; but when the detention is against right, interest from the time when the money should have been paid to the principal, at the rate fixed by the law of the place where it is detained, is chargeable to the agent. Cir. Ct., S. D. N. Y., Sept. 9, 1884. Bischoffsheim v. Baltzer. Opinion by Wheeler, J.




PILE-DAMAGE TO VESSEL-LIABILITY OF OWNER AND OCCUPANT.-A coal merchant having by arrangement with a railroad company, the owner, obtained the exclusive use of a wharf and of the slip adjoining, for the purpose of receiving coal upon cars of the company, and of thence selling and shipping the coal on board vessels that he procures to come to the wharf to receive it, paying the company a fixed sum as wharfage for all coal thus sold and shipped, is liable for the damages to such vessels occasioned by a sunken pile near the wharf, after notice of the existence of the obstruction and of its dangerous character, the vessel having been directed to move over the dangerous spot by his general superintendent. The John A. Berkman, 6 Fed. Rep. 535; Christian v. Van Tassel, 12 id. 884; Swords v. Edgar, 59 N. Y. 35; Leary v. Woodruff, 4 Hun, 99; Cannavan v. Conklin, 1 Daly, 509; Carleton v. Franconia, etc., Co., 99 Mass. 216. The liability of the company as owner for the same damage, if proved, would be no defense to the several liability of the occupaut of the wharf. Dist. Ct., S. D. N. Y., July 26, 1884. Onderdonk v. Smith. Opinion by Brown, J. CONSTITUTIONAL LAW-CONTRACT TO CONSTRUCT ULTRA VIRES-RESCISSION EQUITABLE INTERFERENCE.- The Constitution of the State of Pennsylvania provides that "no corporation shall issue stocks or bonds except for money, labor done, or money or property actually received; and all fictitious increase of stock or indebtedness shall be void." An incorporated railroad company of that State entered into a construction contract whereby the contractor agreed to furnish all the materials and do all the work necessary to construct the company's road, at an expenditure however not exceeding $200,000; and in consideration thereof the company agreed to issue to the contractor $300,000 of its capital stock as fully paid up, and $300,000 of its first mortgage bonds. The materials could be furnished and the road built for $180,000 cash. Held, that the contract contravened the constitutional provision, and was ultra vires aud void. There can be no doubt that a court of equity may entertain a bill to avoid a contract of a corporation which it had no power to make. Aubury Academy v. Strong, Hopk. (N. Y. Ch.) 278. And constructive fraud involving a breach of trust or an abandonment of duty, or a violation of public policy,is a recognized ground for equitable interposition for the cancellation of agreements. 1 Story Eq. Jur., § 694. Where there is fraud *To appear in 21 Federal Reporter,

« PreviousContinue »