INSOLVENCY. N. Y. COURT OF APPEALS. The People ex rel. Kenyon, respt., v. Sutherland, applt. Decided April 6, 1880. The affidavit of service of the order to show cause under the two-third act was subscribed with the name of a certain person, and had a jurat signed by the proper officer, but no name of a deponent was inserted in the body thereof. Held, sufficient. The affidavit averred that deponent served "a printed notice, of which the following is a true copy." It was claimed that no notice followed the affidavit. A notice follows it in the printed case. Held, that the court, on appeal, could not say that the affidavit was defective in this particular. It also averred that the notice was served "on each of the following persons" followed by a list of creditors and their residences, and concluding "by depositing, 1860, April 9, in the Post Office, in the City of Brooklyn, a letter envelope, directed to each of the foregoing creditors at the place of residence herein before designated, and in each envelope was a printed notice, of which the following is a true copy, and on each envelope so directed was placed a post office stamp to pay the legal postage." Held, sufficient to show service on each of the creditors. The creditors were stated to have their resi dences in New York City, and the envelopes were directed generally to that city. They were addressed to the best of the insolvent's knowledge. Held, a sufficient address. The name of one of the creditors, Storrs, was, in the list, spelled "Stores." Held, sufficient; that it was case of idem sonans. Creditors to whom the insolvent is liable as indorser may join in the petition. Reversing S. C., 8 W. Dig., 2. not observed in granting the discharge. 1st. It was claimed that proof that the order to show cause had been duly served upon the creditors was not given. The statute, Laws 1847, chap. 366, §§ 1, 2, provides, that the officer before whom the proceeding is had shall not proceed in the matter when the place of residence of creditors is known to the insolvent, until proof shall have been given, to his satisfaction, of the service of the notice in the manner prescribed by the act. The insolvent's petition averred knowledge of the general place of residence of all the creditors but one. There was produced in this case to the officer, to prove due service of the notice, a paper which indicated. the judicial proceeding in which it purported to have been made, with a proper venue, subscribed with what purported to be the name of a certain person, and having a jurat signed by an officer having due authority to administer an oath, which jurat declared that the paper was subscribed and sworn to before him on a day given. There was no name of a deponent in the body of the affidavit. B. F. Sawyer, for applt. Held, That the affidavit produced was sufficient; that the officer This was an appeal from a judg- granting the order was bound to be ment of General Term affirming a satisfied legally; that is, he must be judgment of Special Term, vacating convinced by means that are fit and and setting aside a discharge from enough to produce conviction in the his debts, obtained by the defend- mind acting judicially, he must be ant under the two-thirds act of this convinced by proof; the evidence state. It was claimed that all the produced should be reduced to pre-requisites of the statute were writing, and in such form and with such accompaniments as to show to the word "unknown" is found. Imthe officer that some person's con- mediately following is the averment: science has been bound by an oath "By depositing, 1860, April 9, in or affirmation, and that some per- the post office, in the city of son had incurred the pains and Brooklyn, a letter envelope, directed penalties for perjury if the state- to each of the foregoing creditors at ments in it were wilfully false, and the place of residence herein before the paper itself should show who designated, and in each envelope the person was. was a printed notice, of which the following is a true copy, and on each envelope so directed was An affidavit is instead of the presence of the person who makes it, and of his testimony given orally. placed a post office stamp to pay the legal postage of each letter to its place of destination." If the writing has that in it or about it which identifies him as the witness as well as does his presence, and which furnishes proof of his having uttered the matter of it under oath as well as does his kissing the book and speaking in the witness box, it is formally as sufficient for evidence as his oral testimony to the same matter. Held, That the affidavit, as a whole, fairly averred the putting as many printed notices as there were creditors named in the affidavit into envelopes, one notice in each envelope, one of which envelopes was directed to each creditor, and it would be evidence of those facts. Most of the creditors are stated in the affidavit to have had their residence in New York City, no street being specified as the place of 2d. The affidavit averred that the deponent "served a printed notice, of which the following is a true copy." It was objected that no notice followed the affidavit. In the residence. The envelopes were diprinted appeal book a notice precedes and follows the affidavit. Held, That this court, from what was shown, could not say that the affidavit was defective in this particular. The affidavit then averred that the printed notice was served "on each of the following named persons, on the days and in the manner next herein specified, that is to say," then immediately follows a list of names of persons under the heading of "Names of Creditors," and in a column parallel with the list and on the same line with each name, a statement of the city or town of residence, save in one instance where rected for those creditors to New Held, untenable. It was Also held, That the meaning conveyed in that portion of the affidavit referring to postage, and the meaning for which the deponent would be responsible, is, that the stamp put on was in value enough to pay the legal postage for each letter according to its address. It was claimed that the name of Charles Storrs, the respondent's assignor, and who was a creditor of the appellant, was entirely omitted from the list of creditors. In that list it appeared spelled Stores, and he was designated as the assignee of the firm. Held, sufficient; that it was a case of idem sonans. 1 Crompton & Mees, 806. It was also claimed that the record does not show that twothirds of the creditors joined in the primary petition. It appeared that two-thirds of the creditors signed the petition, who claimed to represent $41,302.03; the whole amount was $60,707.34. The objection rested on the fact that, for $11,692.12 insolvent's liability was as an indorser. The notes endorsed had been protested and the insolvent had become liable thereon. is no authority given in its charter is ultra vires and void. The ordinary clause in the charter authorizing such corporations to contract with other transportation companies for the mutual transfer of goods and passengers over each other's roads is no authority to lease its road and franchises. The fact that the legislature, after such a lease is made, passes a statute forbidding the directors of the company, its lessees or agents, from collecting more than a fixed amount of compensation for carrying passengers and freight, is not a ratification of such lease or an acknowledgement of its validity. Where, in a lease of this kind, for twenty years, the lessors have resumed possession at the end of five years, and the accounts for that period have been adjusted and paid, a condition in the lease to pay the value of the unexpired term is void, and the case does not come within the principle that executed contracts, which were originally ultra vires, shall stand good for the protection of rights acquired under a completed transaction. Error to the Circuit Court of the Held, untenable; that the effect United States for the Eastern Disof the notice of discharge is to ex-trict of Pennsylvania. onerate the insolvent from all lia- The plaintiffs in error entered into bility incurred by indorsing any a contract on the 8th day of Octopromissory note or bill of exchange ber, 1863, with the Milville & Glassupon the execution of his assign-boro Railroad Company of New ment. 2 R. S., 22, § 31. Judgments of the General and Special Terms reversed, and judgment ordered for defendant. Opinion by Folger, J. All concur. CORPORATIONS. RES. Jersey, which, in the resolution of the board of directors by whom it was initiated, is called a lease of the road. This agreement was confirmed by a vote of the stockholders, and was to continue for a period of ULTRA VI-twenty years from the first day of April, 1863. U. S. SUPREME COURT. George W. Thomas et al., plffs. in error, v. The West Jersey RR. Co. (October, 1879.) A lease by a railroad company of all its road, rolling stock and franchises, for which there It, however, contained a provision that the railroad company could at any time put an end to it upon three months' notice to the other party; but in that event arbitrators were to be chosen, who should decide the value of the contract upon and the amount of damages incurred by and equitably and justly due to the other party by reason of such action. Under this provision the the railroad company ended the contract and resumed possession of the road April 1, 1868. About this time, by acts of the New Jersey Legislature, the Milville & Glassboro Railroad Company was consolidated with the West Jersey Railroad Company, which succeeded to all the rights and obligations of the former company, and the road was delivered by plaintiffs, on the first of April, 1868, to the latter. The thirteenth section of the company's charter under which this lease was made provided: "That it shall be lawful for the said company, at any time during the continuance of its charter, to make contracts and engagements with any other corporation, or with individuals, for the transporting or conveying any kinds of goods, produce, merchandise, freight or passengers, and to enforce the fulfillment of such contracts." This action was brought to recover the value of the contract and the damages sustained by its termination under the clause of the agreement already mentioned. that such a contract was ultra vires of the company. Held, No error; that the contract contains all the elements of a lease. The powers of corporations organized under legislative statutes are such and such only as those statutes confer. Conceding the rule applicable to all statutes, that what is fairly implied is as much granted as what is expressed, it remains that the charter of a corporation is the measure of its powers, and that the enumeration of these powers implies the exclusion of all others. 11 C. B., 803. It is impossible, under any sound rule of construction, to find in the language used in the charter, a permission to sell, to lease, or to transfer the entire road and the rights and franchises of the corporation to others. To do so, is to deprive the company of the power of making these contracts which this clause confers, and of performing the duties which it implies. Where a corporation, like a railroad company, has granted to it by charter a franchise intended in large measure to be exercised for the public good, the due performance of those functions being the The court held the contract void, and instructed the jury to find a consideration of the public grant, verdict for defendants. This writ of error brings up the judgment entered on that verdict for review. any contract which disables the corporation from performing those functions, which undertakes, without The ground on which the court the consent of the state, to transfer so held, and on which the ruling is to others the rights and and powers supported in argument here, is, that conferred by the charter, and to rethe contract amounted to a lease, lieve the grantees of the burden by which the railroad, rolling stock which it imposes, is a violation of and franchises of the corporation the contract with the state, and is were transferred to plaintiffs, and void as against public policy. 17 How., 30; 1 Sim. N. S., 550; 13 L. many instances where an invalid & Eq., 506; 7 C. E. Green, 399. In 1867 the legislature passed an act in relation to the Milville & Glassboro RR. Co., which provided as follows: contract, which the party to it might have avoided or refused to perform, has been fully performed on both sides, whereby money has been paid or property changed hands, the Be it enacted, &c., "That it shall courts have refused to sustain an be unlawful for the directors, lessees action for the recovery of the propor agents of said railroad, to charge erty or the money so transferred. more than three and a half cents 22 N. Y., 494. per mile for the carrying of passenBut what is sought in the case gers, and six cents per ton per mile before us is the enforcement of the for the carrying of freight or mer- unexecuted part of this agreement. chandise of any description, unless So far as it has been executed, a single package, weighing less than namely, the four or five years of acone hundred pounds; nor shall tion under it, the accounts have more than one-half of the above been adjusted, and each party has rate be charged for carrying any received what he was entitled to by fertilizing materials, either in their its terms. There remains unperown cars or cars of other companies formed the covenant to arbitrate running over said railroad: Pro- with regard to the value of the convided, That nothing contained in tract. It is the damages provided this act shall deprive the said rail- for in that clause of the contract road company, or its lessees, of the benefits of the provisions of an act entitled 'An act relative to freights and fares on railways in this state,' approved March 4, 1858, and applicable to all other railroads in this state." that are sued for in this action. Damages for a material part of the contract never performed; damages for the value of a contract which was void. It is not a case of a contract fully executed. The very nature of the suit is to recover damages for its non-performance. As to this it is not an executed contract. Held, That this was not a ratification of the contract. The mention of the lessees no more implies a Not only so, but it is a contract ratification of the contract of lease forbidden by public policy and bethan the word directors would im- yond the power of the defendants ply a disapproval of the contract. to make. Having entered into the It is not by such an incidental use agreement, it was the duty of the of the word lessees, in an effort to company to rescind or abandon it make sure that all who collected at the earliest moment. This duty fares shall be bound by the law, was independent of the clause in the that a contract unauthorized by the contract which gave them the right charter, and forbidden by public to do it. Though they delayed its policy, is to be made valid and rati- performance for several years, it was fied by the state. nevertheless a rightful act when it There can be no question that in was done. Can this performance of |