that "they were not to consider solely what was convenient for the business of the defendants." The defendant at the bar has asserted an unqualified and absolute right to approach the area of the building operations which he was carrying on, by the nearest road, to any extent, for any materials, for any time, and without regard to the plaintiff's convenience or inconvenience. Such a claim is, in my judgment, untenable. It appears to me to be the expression of the selfish and not of the social man of the man who recollects his rights, but who does not recollect his obligations, and human life could not be carried on if such extreme rights were asserted and insisted on. The question I have inquired into is, whether the user of the road or roads in question by the defendant was, having regard to all the circumstances of the case, reasonable. The circumstances are undoubtedly peculiar. The block of buildings which the defendant had to erect was capable of being got at from roads only by means of three passages-Crane court leading from Fleet street, Fleur-de-lis court leading from the southern part of Fetter lane and what has been called for convenience "the plaintiff's passage," and the "plaintiff's court," leading directly from the northern part of the side into Fetter lane. That last passage was undoubtedly the most convenient mode of access, for the defendant, to his property. It was the most convenient for several reasons. It was the shortest, and it also led to that portion of the property which the defendant used as a yard for the purpose of his building operations. It must be further observed that the operations which the defendant had to carry on were very considerable. His building contract was for nearly 6,000l. He had to remove a very large quantity of old buildings and rubbish -a quantity that took from the 21st May to the 9th July. He had to carry in a very large quantity of materials for the purpose of the new hall and chapel, which he erected for the Scottish Corporation― operations which lasted for several months. Under those circumstances it appears to me that to carry on the whole of the defendant's operations through what has been called the plaintiff's passage was not reasonable. I am unable to see any reason why a large proportion of the old materials might not have been carried down Crane court, and why a much larger proportion might not have been carried down Fleur-de-lis court, and the inconvenience necessarily created by carrying away rubbish of that character distributed over the whole of the passage which gave access to the site. Further than that, it appears to me that the defendant, having regard to the peculiar difficulties of his case, should have made some different arrangement with regard to the time during which his operations were carried on. In fact he carried them on during the busiest and most occupied hours of the day, and took no pains to diminish the inconvenience by carrying on his operations early in the morning or late at night. What was the result upon the plaintiff of these operations so carried on by the defendant? Undoubtedly, the passage close by his house was practically devoted to the building operations of the defendant for a long period of time. For exactly how many days it was unsafe to cross that passage I do not know, but certainly for months these operations went on, and it appears to me that they went on in such a manner as to render it exceedingly difficult, if not impossible, for persons to obtain access to the plaintiff's premises from Fleet street, coming up on the eastern side of Fetter lane, and the natural effect of it would be to drive persons away who might have become customers, and to render the access to the plaintiff's house so difficult that most persons would abandon passing along that side of the road, and there is some evidence that persons who were in the frequent habit of going to the plaintiff's house as customers ceased to do so during a portion of the time

these operations were going on. What has been the result of these operations, therefore, to the plaintiff? I have come to the conclusion that the plaintiff has proved that he has sustained considerable loss in his business as a dealer in old curiosities in consequence of the defendant's operations, and although it is very difficult to assess the amount of that loss, I have, sitting as a judge of fact, arrived at the conclusion that he has sustained loss to the extent of 60l. Then arises the question or questions, how far this state of circumstances gives rise to any legal right in the plaintiff. Now the cases of Rose v. Groves, and Lyon v. Fishmongers' Company, in the House of Lords, supra, appear to me to establish this, that where the private right of the owner of land to access to that land is interfered with, and unlawfully interfered with, by the acts of the defendants, he may recover damages from the wrong-doers to the extent of the loss of profits of the business carried on at that place. The case of Rose v. Groves was that of an owner of a riparian property, but it is referred to by the lord chancellor in the case of Lyon v. The Fishmongers' Company, supra, and he cites there the observations of Lord Hatherley, when vice-chancellor, in Attorney-General v. Conservators of the River Thames, 8 L. T. Rep. (N. S.) 9; 1 H. & M. 31, as follows: "I apprehend that the right of the owner of a private wharf, or of a roadside property, to have access thereto, is a totally different right from the public right of passing and repassing along the highway on the river." Then the lord chancellor continued: "The existence of such a private right of access was recognized in Rose v. Groves. As I understand the judgment in that case, it went not on the ground of public nuisance, accompanied by particular damage to the plaintiff, but on the principle that a private right of the plaintiff had been interfered with." Then, after more fully examining that case, and expressing not the slightest intention to differ from it, his lordship says: "Independently of the authorities, it appears to me quite clear that the right of a man to step from his own land on to a highway is something quite different from the public right of using the highway. The public have no right to step on to the land of a private proprietor adjoining the road. And though it is easy to suggest metaphysical difficulties, when an attempt is made to define the private as distinguished from the public right, or to explain how the one could be infringed without at the same time interfering with the other, this does not alter the character of the right." Applying that principle to the present case it does appear to me that the evidence shows that the access to the plaintiff's door in the passage from the street was interfered with by the acts of the defendant, which I hold to be unreasonable, and therefore wrongful, and that being so, the cases to which I have referred are authorities for the plaintiff on that ground, and entitle him to recover the amount of loss in his business carried on upon his property. But I will consider the case further on the ground of the private injury resulting from the public nuisance. The conditions under which a private person may recover in such a case as that are well expressed in the judgment of Brett, L. J., then a member of the Court of Common Pleas, in the case of Benjamin v. Storr, supra. "The cases referred to on this subject," his lordship says, "show that there are three things which the plaintiff must substantiate, beyond the existence of a mere public nuisance, before he can be entitled to recover. In the first place he must show a particular injury to himself beyond that which is suffered by the rest of the public." Now I ask whether, in this case, the plaintiff has or has not sustained that particular injury from the public nuisance? It appears to me that he has. The case of Iveson v. Moore, supra, is a case of great authority. It is reported in numerous books. It has found its way into the various digests of the

law, and has been cited with approval in the great case of Ricket v. Metropolitan Railway Company, by the Court of Exchequer Chamber, and the case itself was decided by the Court of Exchequer Chamber. Now, as cited, that case resulted in this: "As if A has a colliery, and B stops a highway near it whereby nothing can pass to such colliery, an action on the case lies, for he ought to be remedied in particular, although it was a highway." And, accordingly, in the case of Benjamin v. Storr, the court there considered that "if by reason of the access to his premises being obstructed for an unreasonable time and in an unreasonable manner, the plaintiff's customers were prevented from coming to his coffee-shop, and he suffered a material diminution of trade, that might be a particular, a direct, and a substantial damage." No doubt Ricket v. Metropolitan Railway Company shows that where the obstruction is at a considerable distance and temporary, and the injury which the plaintiff sustains is only in common with a large number of other persons, such a right of action does not arise; but it appears to me that this case is far more like the case of Iveson v. Moore and the case of Benjamin v. Storr, than the case either of Wilkes v. Hungerford Market Company, supra, or the case of Rickett v. The Metropolitan Railway Company, supra, and that there is here that particular injury to the plaintiff resulting from a public nuisance which is referred to in those cases. The second condition which is referred to by Brett, L. J., is this: "Other cases," he says, "show that the injury to the individual must be direct, and not a mere consequential injury." Now, I have already considered that point, and the cases I have already referred to seem to show that this is sufficiently direct. Lastly, "The injury must be shown to be of a substantial character, not fleeting or evanescent." What is the meaning of those words "fleeting or evanescent?" It is not perhaps easy to answer that, but it appears to me that nothing can be deemed to be fleeting or evanescent which results in substantial damage, and that the question therefore is not one to be measured by time, but one to be measured by its effect upon the plaintiff, and accordingly in the case I have referred to, and which, it appears to me, I am bound to treat as law, I find that the interruption for the course of one month of a public highway was deemed sufficient interference to give the plaintiff a right of action, and that case, I repeat, is one which has been adopted and approved of by the Court of Exchequer Chamber in Ricket v. The Metropolitan Railway Company, supra. The result, therefore, to my mind is this, that even upon the ground of public nuisance the plaintiff has made out his case, and it follows from what I have said that it appears to me that the plaintiff is entitled to judgment to the extent of Gol.

[The remainder of the opinion is devoted to a consideration of the relief which may be granted under a statute known as Lord Cairns Act.]

Judgment for plaintiff for 601.

CONCLUSIVENESS OF JUDGMENT AS TO FACTS STATED THEREIN.

NEW YORK COURT OF APPEALS, MAY 31, 1880.

FIELD V. BLAND ET AL., Appellants. Plaintiff took from the wife of defendant a confession of judgment for the value of certain goods delivered by plaintiff to her, which were described in such judgment as "sold and delivered" to such wife. It was also stated therein that for the value thereof, $3,000, "she is indebted to plaintiff." Thereafter defendant and his wife removed the goods and refused to return them to plaintiff, after which, with knowledge of the facts, plaintiff issued execution upon the judgment and collected a part of the amount due thereon. Held, that

the judgment was conclusive against the 'plaintiff as to the fact that the goods were sold to the wife and he could not maintain an action against defendant for their conversion.

THIS

HIS was a motion to vacate an order of arrest issued on affidavits alleging that plaintiff, in October, 1878, delivered a quantity of goods, consisting of pistols, opera-glasses, jewelry, musical and mathematical instruments, etc., to the defendant's wife to sell at her store on commission; that she, about April, 1879, with her husband's assistance, packed up and stored the goods, without plaintiff's knowledge or consent, and refused to return them on demand.

Defendant moved, on affidavits alleging that the defendant's wife purchased the goods outright, as was evidenced by bills delivered at the time the goods were delivered; and further alleging that after the goods were delivered defendant's wife confessed a judgment for $3,000, the value, at plaintiff's request, on which confession judgment was rendered on December 24, 1878, and that on the afternoon of April 26, 1879, after knowing of the breaking up of the store and all the facts relied on to show the alleged conversion, the plaintiff issued execution and collected over $400 on the judgment. The defendant claimed that the confession of judgment was conclusive evidence that the transaction was a "sale and delivery" of the goods and that in any event the issuing of an execution, with knowledge of all the facts alleged to show a conversion, was an election of plaintiff's remedy, and this action could not be maintained.

Plaintiff claimed the judgment was only intended as a collateral security. Justice Lawrence denied a motion to vacate the order of arrest and on appeal the General Term affirmed the order.

M. M. Budlong, for appellant.
A. Kling, for respondent.

DANFORTH, J. The order for the arrest of John B. Bland, one of the defendants, was granted upon the ground that the defendants had wrongfully taken and converted certain personal property of the plaintiff's. The affidavits on which the order was granted were to the effect that the goods had been intrusted to Susan Bland, upon her agreement that she, with the aid of her husband John B. Bland, would sell them for the plaintiff and account for the proceeds; that instead of doing so they had secreted and taken them away.

A case was made out authorizing the order, and although upon the motion to vacate it the facts on which it rested were denied, we should find in such denial no ground for interfering except for the circumstance next to be considered. After the goods had gone into the possession of the defendant Susan and on the 28th of December, 1878, the plaintiff accepted from her a confession of judgment for the whole value thereof and after the facts now alleged to show conversion of the property were known to him, and on the 26th day of April, 1879, he issued an execution for its enforcement and collected about $40, part thereof. The statement upon which the judgment was entered, described the property now in question, declares that it was "sold and delivered " to the defendant Susan, and that for its value, $3,000, she is indebted to the plaintiff. It is true that the plaintiff in opposing this motion declares that the judgment was taken as security merely. But this is not only in direct opposition to the statement, but the judgment has been, as before observed, enforced by him to some extent, and no proceedings have been taken to amend or correct the statement upon which the judgment was entered. Under these circumstances I think it should be held conclusive against the plaintiff as to the fact in issue; otherwise a means would be provided by which the statute (Code of Civil Procedure, tit. 11, §§ 1273, 1274) permitting judgments to be taken by coufession could

be easily evaded and a door opened to the perpetration of the grossest frauds.

The plaintiff, by accepting the judgment and taking out and enforcing his execution, must be deemed to have made his election to treat the goods as the property of the defendant, under a sale by himself (Morris v. Rexford, 18 N. Y. 557; Bank of Beloit v. Beale, 34 id. 477) and he cannot now change his ground.

The order appealed from should be reversed and motion to vacate the order of arrest granted, with costs. All concur.

HATCH V. TUCKER, SWAN & Co.

A loaded B's vessel with coal consigned to C. A dispute arising between A and the master of the vessel, as to a charge made by A for trimming the cargo, the master refused to sign the bill of lading, and sailed without signing any bill of lading. The coal was delivered to the consignee, C, and accepted. Held, that C, the consignee, was liable to B for the freight. Held, further, that C could not deduct from the freight due to B the charge for trimming made by A.

EX

XCEPTIONS to the Court of Common Pleas. The facts appear in the opinion.

Perce & Hallett, for plaintiffs.

Vincent & Carpenter, for defendants.

POTTER, J. The evidence, as allowed, states that the plaintiffs' vessel in July, 1877, was loaded by a coal company, consignors, at Amboy, New Jersey, with coal for Tucker, Swan & Co., Providence, Rhode Island. The vessel not being properly trimmed, it appears to have been done by the consignors at an expense of $17.04, which the captain refused to pay to the consignors, and sailed without signing any bill of lading.

Although there are many items of evidence to imply that the coal was ordered by the consignees, and that therefore, so far as the cargo was concerned, the cousignors were agents of the consignees, yet there is no positive evidence of it, and it is easily to be seen that this might seriously affect the decision.

There is here no dispute about the bill of lading or amount of freight.

The consignors it seems trimmed the vessel and claimed to hold the bill, $17.04, against the vessel, and because they did, the captain declined signing any bill of lading.

On arrival, the consignees paid the freight, holding back $30, as they claimed, to cover expenses. They have subsequently paid to the consignors the bill for trimming, $17.04, and have tendered and still tender to the master the remainder of the $30.

The two questions presented are: First, the consignees' liability for freight. Second, if they were liable, had they any right to deduct the charge for trimming the load?

It may perhaps be best to first consider the consignees' liability if the master had signed a bill of lading, and then to consider how the liability is affected by the want of a regular bill of lading signed by him.

On reading the cases, it is evident that some confusion arose at first from the supposed difficulty of holding that both consignor and consignee could be liable at the same time. But it is now settled that the consignor still continue liable even after the consignee becomes so. Maule & Pollock on Shipping, 253; Shepard v. De Bernales, 13 East, 565; 3 Kent's Com. 222; Wooster v. Tarr, 8 Allen, 270.

As to whether acceptance under a bill of lading "he and they paying freight," makes the consignee liable for freight, there are two classes of cases.

Of the one class, a leading case is Sanders v. Vanzeller, 4 Q. B. 260, also in 2 G. & D. 241, which holds that while the law will not imply a contract from acceptance, still the circumstances of the acceptance may go to the jury in evidence of a new contract. So Young v. Moeller, 5 El. & B. 755, 760, and other cases cited in 3 Kent's Com. 222, seq. Maclachlan on Shipping, 466, takes this view.

The other class of cases is represented by Cock v. Taylor, 13 East, 399, A. D. 1811, which holds not merely that the acceptance should be submitted to the jury as evidence from which they might infer, etc., but that the acceptance of the goods is evidence of a new agreement. "His receiving them from the master and the master's parting with his lien and giving them up to the purchaser at his request, is evidence of a new contract," etc. "The indorsees of the bill of lading knew that they had no right to take the goods from the master without payment of freight."

Dougal v. Kemble, 3 Bing. 383, also, in 11 Moore, 250, "whoever obtains the delivery of the goods under such a bill of lading, contracts by implication to pay the freight due on them. There is no assignment of contract; no shifting of liability. The receiver of the goods is an original contractor to pay the freight of them." Per Best, C. J., 3 Bing. 389; Merian v. Funck, 4 Denio, 110. It is well settled that acceptance is enough. So in Davison v. City Bank, 57 N. Y. 81; Jesson v. Solly, 4 Taunt. 52.

Bell v. Kymer, 1 Marsh. 146. Gibbs, C. J., "a man most eminent for his knowledge of commercial law," holds that "the holders of a bill of lading were bound to know they were liable for freight," cited and approved by Best, C. J., in Dougal v. Kemble, 3 Bing. 383, 390, 391.

Pelayo v. Fox, 9 Penn. St. 489: Delivery to indorsee of bill of lading who had bought after shipment, makes him liable for freight.

Blanchard v. Page, 8 Gray, 281, 291. Shaw, C. J. If a consignee, holding a bill of lading requiring a delivery conditioned on payment of freight, presents it and receives the goods without paying freight at the moment of delivery, such acceptance under such a claim is evidence of a promise on the part of the consignee to pay the freight, on which, if not rebutted, an action will lie. And the majority of the text-writers seem to take this view, that if the acceptance is proved, the law implies the new contract.

Bateman on Commercial Law, § 801: The consignee having received the goods without pay, the law gives the right to demand it at the place of destination. Citing Jeremy on Carriers, § 84; Story on Bailments, $ 586.

Story on Bailments, § 589: When the bill of lading provides for delivery, the consignee or his assignees paying freight, the acceptance of the goods binds the consignee by implication. Citing Dougal v. Kemble, 3 Bing. 383.

Kent's Commentaries, vol. 3. p. 222, says that if the master delivers without payment he may sue the consignee on an implied contract, the delivery without payment being the consideration. This is in the chancellor's text, citing Cock v. Taylor, 13 East, 399, and Brouncker v. Scott, 4 Taunt. 1. A note says, that but for the case of Sanders v. Vanzeller, 4 Q. B. 260, he should have considered the law would imply the contract.

So 1 Parsons on Shipping, 209. If the master delivers goods with notice that he shall look to the consignee and the consignee accepts, he becomes liable.

And Abbott on Shipping, 422, after stating that the persons accepting the goods under the ordinary bill of lading are liable, says, "and this opinion seems consonant to sound reason; for if a person accepts any

thing which he knows to be subject to a duty or charge, it is rational to conclude that he means to take the duty or charge on himself, and the law may very well imply a promise," etc.

"The delivery of the goods to the consignees and their acceptance of them under the bill of lading raised an assumpsit against them to pay freight according to the stipulation in the bill of lading." Judge Betts, in Shaw v. Thomson, Olcott, 144, 149.

The weight of authority, therefore, seems to be that where there is a bill of lading, and the acceptance by the consignee is proved and unexplained, the law will imply a promise to pay freight.

Next, how would the case stand without any regular bill of lading. In the present case, the bills were made out, but not signed by the master, and one of these unsigned bills was sent to the consignee and received by him.

In The Patona, 2 Curt. 21, 26, 27, the captain had refused to sign the bill of lading. Judge Curtis held that it was not essential to a legal consignment which might be merely verbal, and this is quoted and approved by Shipman, J., in Fox v. Holt, 36 Conn. 558, 560.

In The Water Witch, 1 Black, 494, the master refused to sign the bill, but received the cargo and carried it to the consignees and libelled it for freight. In this case the shipper forwarded the unsigned bills to the consignee. The right to freight was not disputed, but damages were claimed exceeding the freight.

The clause by which the owner binds the ship and the shipper of the cargo, each to the other, is borrowed from, and a part of, the general mercantile law. So many provisions in charter-parties or bills of lading merely express what the law would imply without them. Judge Story, in Schooner Volunteer, 1 Sumner, 571; Abbott on Shipping, 160.

Maule & Pollock on Shipping, 258. The lien for freight exists without any express stipulation. It exists independent of contract, for freight due.

The books contain very few cases where a cargo is sent without a bill of lading; but the foregoing quotations are sufficient, we think, to show that in these cases mercantile usage agrees with the principles of the common law as applied to other contracts.

The coal was sent to the consignees. They received it and directed the master to deliver it to Smith, which he did. There is no complaint of want of examination, or that the cargo was damaged, or was not what they expected. One of the unsigned bills was received by the defendants. The defendants made no objection to the freight, but paid it all except $30, which they kept back and claimed a right to deduct.

These facts stated in the reported evidence would seem sufficient to establish their liability for freight before any jury.

Further, the presumption of law is said to be, in the absence of any evidence on the subject, that the consignee is the owner. Baron Parke, in Coleman v. Lambert, 5 M. & W. 502; Krulder v. Ellison, 47 N. Y. 36; citing Price v. Powell, 3 id. 322; Everett v. Saltus, 15 Wend. 474.

The defendants' first point in the present case is, that the contract being between the consignor and carrier, the consignor is alone liable for freight. And they cite three cases, Blanchard v. Page, 8 Gray, 281, 290, 291; Wooster v. Tarr, 8 Allen, 270; Gage v. Morse, 12 id. 410.

Blanchard v. Page was not a suit for freight, but was brought by the shipper of the cargo against the owners of the vessel to recover for damage done to the goods. The only question in the case was, whether the shipper, who was a mere agent, could sue, it being admitted that the owners, though not named in the bill, could. It was not necessary to make any decision as to the rights of a consignee to sue unless owner; but p. 91, the court says, though it is not necessary to the

decision, what we have quoted before, that the acceptance of the goods by the consignee under certain circumstances would render him liable for freight.

Gage v. Morse, 12 Allen, 410, was a case of demurrage, and therefore not like the present. Freight and demurrage are different things and the liability depends ou different grounds.

Wooster v. Tarr, 8 Allen, 270, decides that the shipper named in a bill of lading is liable to the carrier for the freight although he does not own the goods, and the carrier has waived his lien thereon. That case did not involve the question of the liability of the consignee, nor do any of the remarks of Bigelow, C. J., affect the present case.

The defendant's second point is, that the liability to freight does not pass with the goods, and they cite Sanders v. Vanzeller, 4 Q. B. 260. All which that case decides is, that while the jury might infer a contract to pay freight from the defendants taking the goods, the court could not infer one as a matter of law.

If the consignee in the present case was liable for the freight, had he any right to keep back $17.04?

The consignor, the coal company, loaded the vessel. The plaintiffs found the load was not properly trimmed by the men employed by the consignor and that they had not a full load. The consignor claimed to hold the trimmers' bill against the vessel, which the master refused to allow. But the defendants, notwithstanding, paid this bill to the consignor.

The $17.04 was a matter disputed between the master and the consignors; he had no contract with any but the consignors (Wooster v. Tarr, 8 Allen, 270), until a new contract arose by implication with the consignees, and we cannot see that the consignees had any right to deduct it from the freight any more than any debt the captain might owe to any other person.

Ordinarily, the captain and men are to load the vessel, usage and special contract excepted. The captain is to superintend the trimming of his vessel.

And as we have said, the contract as to receiving and loading the coal was between the master and consignors only. If the consignors agreed to load the vessel and it was not properly trimmed, it was the consignors' fault, and they had no claim for it on the captain, whose only duty would be to superintend it. But if the master was to load, it was still a dispute between the master and consignors, and the consignees had no right to withhold it from the master.

The judge having instructed the jury that as the bill of lading was not sigued, the master had no claim on the consignees for freight, but must look to the consignors, a verdict under his direction was taken for the defendant.

From the views before expressed it results that a new trial must be granted.

Exceptions sustained.

NEW YORK COURT OF APPEALS ABSTRACT.

APPEAL -TO COURT OF APPEALS-WHEN NOT AL LOWED. This case was tried before a jury and a verdict rendered for plaintiff. Defendant moved for a new trial on the minutes, which motion was denied and judgment entered on the verdict. Defendant appealed from the order denying his motion, and from the judgment. The General Term made an order reversing the order below and the judgment and granting a new trial. The opinion of the General Term showed that the reversal was upon questions of fact. Held, that an appeal would not lie to the Court of Appeals. Wright v. Hunter, 46 N. Y. 409; Sands v. Crooke, id. 564; Dickson v. Broadway, etc., R. Co., 47 id. 507; Downing v. Kelly, 48 id. 433; Harris v. Burdette, 73 id. 136. Appeal dismissed. Whitson, appellant, v. David. Opinion by Earl, J. [Decided June 18, 1880.]

EQUITABLE ACTION WILL NOT LIE TO SET ASIDE FRAUDULENT CONVEYANCE WITHOUT JUDGMENT AT LAW AND EXECUTION — CORPORATION. — An action will not lie to set aside a transfer of property as fraudulent, and the appointment of a receiver in behalf of a creditor who has not had a judgment execution and return, on the ground that the transfer was made by an insolvent corporation. The remarks of Nelson, J., in McElwain v. Willis, 9 Wend. 548, are not applicable where no judgment has been obtained. The provision of the Code of Civil Procedure, §713, has not changed the practice in this respect or established any new rule which authorizes an equitable lien before a judgment is obtained. While that section may well apply in some cases where the right to or interest in the property is apparent, it does not confer an equitable remedy under ordinary circumstances where no judgment has been obtained. The rule is well settled that until a creditor has obtained a judgment at law for his demand and the return of his execution unsatisfied, an action in equity will not lie to reach assets and apply them to the payment of a moneyed demand arising upon contract. 2 R. S. 173, § 38; Dunlevy v. Tallmadge, 32 N. Y. 457; Beardsley Scythe Co. v. Foster, 36 id. 565; Ocean Nat. Bauk v. Olcott, 46 id. 12. Before judgment and execution a creditor at large is not entitled to the interference of a court of equity on the ground of fraud. Wiggins v. Armstrong, 2 Johns. Ch. 144. Nor do allegations of insolvency change this rule. Estes v. Wilcox, 67 N. Y. 264. Judgment affirmed. Adee, appellant, v. Bigler. Opinion per Curiam.

[Decided June 8, 1880.]

RESCISSION OF CONTRACT WHEN FOR FRAUD PARTY RESCINDING NEED NOT REIMBURSE WRONGDOER — TAX PAID BY FRAUDULENT VENDEE.- While the rule is that a party undertaking to exercise the right to rescind a contract for fraud must restore to the other party what he has received under it (Curtis v. Howell, 39 N. Y. 215; Cobb v. Hatfield, 46 id. 533), the law will not imply a promise on the part of the plaintiff asking for a rescission to reimburse the defendant for advances or expenditures made by the latter to effectuate his fraud, although the plaintiff would have the benefit of such advances or expenditures on rescinding. Accordingly when defendant having procured from plaintiff by fraud a sale of whisky upon which the government had a lien for its tax, paid the tax in order to get possession of the whisky and enable him thereby to consummate his fraud, held, that plaintiff was not bound to reimburse defendant for the tax paid in order to rescind the sale. The doctrine of equitable subrogation will not be applied in such a case to relieve defendant from a loss occasioned by his own unlawful act. The case is analogous to that of a willful trespasser who has wrongfully converted a chattel and afterward enhances its value by labor. He is bound to account to the true owner for the value of the chattel in its changed or improved condition, and the recovery will not be limited to its value in the condition in which it was at the time of the conversion. Silsbury v. McCoon, 3 N. Y. 379. The law cares very little what a fraudulent party's loss may be and exacts nothing for his sake. Mason v. Bovet, 1 Den. 74. Judgment affirmed. Guckenheimer et al. v. Angevine, appellant. Opinion by Andrews, J.

[Decided June 15, 1880.]

TRUST WHEN TRUSTEE LIABLE INDIVIDUALLY TO CREDITOR OF CESTUI QUE TRUST-FORMER ADJUDICATION-CONTEMPT.- In an action by a creditor of a cestui que trust against the trustee for the purpose of collecting the debt out of the trust estate a judgment was rendered by the terms of which it was decreed "that the surplus income of said trust estate amounted

during the three years subsequent to the commencement of the action to the sum of $2,572.48," and that the debt of the plaintiff and his costs be paid by the trustee out of this surplus. From this judgment no appeal was taken. Notice was served on defendant, the trustee, and a formal demand made for him to pay according to the terms thereof. No attention being given to this demand a notice of motion was served upon him by plaintiff asking for leave to issue execution against the trust estate or against the trustce individually as a punishment for his contempt in disobeying the order of the court. The motion was granted so far as to permit a precept to issue for the collection of the debt out of the property of the trustee. Held, that this order was in the power and discretion of the court. The trustee was bound by the judgment. That determined that he had the money applicable to the payment of the debt, and on this motion the crustee could not set up the defense that he had not the money on hand or that he had paid it over to the wife of the cestui que trust under a decree in another action made before the rendition of the judgment mentioned. This court must conclude that in rendering the judgment this decree was properly considered and given due weight and the surplus decreed unaffected by it. While in the first instance the trustee was not personally liable for the debt he became so by his disobedience of the command of the judgment. Order affirmed. Williams v. Thorn et al., appellants. Opinion by Finch, J.; Rapallo and Danforth, JJ., dissented. [Decided June 15, 1880.]

UNITED STATES SUPREME COURT

ABSTRACT.

OCTOBER TERM, 1879.

CORPORATION-ULTRA VIRES RATIFICATION BY ACQUIESCENCE.- The charter of a financial corporation provided thus: "The business of the corporation shall be managed and directed by the board of trustees, who shall elect from their number a president and two vice-presidents, and may appoint such other officers as they may see fit; nine of the trustees, of whom the president or one of the vice-presidents shall be one, shall form a quorum for the transaction of business at any regular or adjourned meeting of the board of trustees; and the affirmative vote of at least seven members of the board shall be requisite in making any order for, or authorizing the investment of any moneys, or the sale or transfer of any stock or securities belonging to the corporation, or the appointment of any officer receiving any salary therefrom." On the 18th of September, 1873, the board of trustees authorized and empowered the officers of the company to assign and transfer any of the regular stock of the United States standing in its name. On the 13th of December in that year, the same board directed the finance committee to authorize those officers to negotiate the securities of the company in such manner as to relieve the company from its embarrassment. During November or December the company borrowed from L. $10,000, giving him its note for that amount and as collateral securities held by the company. The company was then embarrassed for money and used the money borrowed to pay off its obligations. In 1874 the duly authorized agent of the company agreed with L. that L. should lend the agent $21,000, including the note of the company for $10,000, and that the agent should procure the transfer by the company of certain obligations held by it including certain notes. This was done. There was no formal order by the board of trustees as provided by the charter touching either of the transactions with L., but they were communicated, as were