Christian nations, including civil as well as criminal jurisdiction; and the act of Congress of June 22, 1860, established the necessary regulations for carrying the jurisdiction into effect.

4. But as this jurisdiction is, in terms, only such as is allowed by the laws of Turkey, or its usages in its intercourse with other Christian nations, those laws or usages must be shown in order to know the precise extent of the jurisdiction.

5. The court cannot ordinarily take judicial notice of foreign laws and usages; a party claiming the benefit of them by way of justification, must plead them.

6. That the plea of the defendant was defective for not setting forth the laws or usages of Turkey upon which, by the treaty and act of Congress conferring the jurisdiction, the latter was made to depend, and which alone would show its precise extent, and that it embraced the case in question.

Opinion by Mr. Justice Bradley.

CONTRACT.

N. Y. SUPREME COURT-GEN'L TERM,
FIRST DEPT.
Ainsworth, Applt., v. Backus, Respt.
Decided Oct, 29, 1875.

Appeal from judgment at Circuit dismissing the complaint, and directing exceptions to be heard in the first instance at the General Term.

The plaintiff obtained a policy on the life of her husband, and assigned sixty per cent. of the amount secured by it to the defendant, who, in consideration of such transfer, agreed to "keep it alive" for the benefit of plaintiff and her family. Defendant paid the premiums and kept the policy alive for several years, and after that, without notice to plaintiff, failed to perform his engagement, and permitted the policy to lapse and become forfeited. The plaintiff seeks, in

this action, although her husband is still living, to recover the value of the policy, to indemnify her for the damage sustained by reason of the forfeiture named. The only consideration for the agreement, by the defendant, was the assignment of a part of the policy.

Held, That the policy was not assignable, during the life of the insured, and the assignment thereof, being void, furnished no consideration for the undertaking on the part of the defendant, and such want of consideration would be a valid excuse for defendant, provided he had never entered upon the performance of his agreement. But, having undertaken the performance of the agreement, it was his duty to have given notice to plaintiff before ceasing to perform on his part, and he is liable for his omission and neglect, although his undertaking was voluntary.

The fact that plaintiff's husband was living is not a bar to this action, that only affects the measure of damages. The plaintiff has an inchoate right to the amount secured by the policy, which would become absolute on the death of her husband, and the value of that right would doubtless be the measure of damages The plaintiff having made out a cause of action the judgment was erro

neous

Judgment reversed, new trial granted with costs to abide event.

Opinion by Brady, J.; Daniels,.J concurring.

SUPREME COURT OF PENNSYLVANIA.
Humer. v. Givler.

Decided June 9, 1875.

Evidence. Charge to Jury.

Error to the Common Pleas of Cumberland County, Action. Debt for the price of some wheat sold and delivered. Defence. General issue.

The testimony of the plaintiff himsell and his two sons was: On February 26,

1873, the plaintiff was passing the mill of the defendant and asked him what he was paying for wheat, and the reply was that he would give as much as was paid in a neighboring town, to which the plaintiff replied “all right. Two days after the plaintiff, in again passing the mill, showed the defendant a sample of some wheat, and on the same day found the price in the town to be $1.85 a bushel; and on three days later he sent to the miller 83 bushels of wheat, which was received, receipted for, and put into a bin with other wheat of the millers.

For the defendant the evidence was: He offered $1.85 for the wheat and the plaintiff refused to sell and asked $1.90, saying that he could get that price elsewhere, when the defendant said that that was the place to sell. When the first load of wheat was brought to the mill by the plaintiff's sons, they said that the miller had bought it at $1.85, and on bringing the second load, a few days later, the sons were told that the miller would not pay more than $1.80. About a month later the parties met and the defendant offered to settle at $1.80, but the plaintiff refused to take that price. Then the defendant carefully removed 83 bushels of wheat from the quantity of wheat of which plaintiff's was a part, being as nearly identical with the plaintiff's wheat as could be, and gave the plaintiff notice to remove it, but he never did.

The plaintiff asked the Court to instruct the jury, that, if the defendant or his agent, receive the wheat into the mill and put it into the same garner as other wheat of the defendant, so that he could not return the same identical wheat he had received from the plaintiff, that that was an act of appropriation of the wheat and made him liable for the market value of it.

This request was refused, and the Court charged that the plaintiff's case depended upon the question whether there was a contract of sale, and that

This was an action to charge defendant as trustees of a manufacturing corporation with a debt of the company on the ground of their failure to file the annual report, required by the Act, under which the Company was organized (Sec. 12, Chap. 40., Laws of 1848, as amended by Chap. 843, Laws of 1853.) The capital stock of the Company was $300,000, the whole amount had been issued in payment for patent rights. The trusteees filed a report as follows; "The amount of the capital stock of this company, and which has been issued for the purchase of patent right and which has not been paid in cash is $300,000; amount outstanding debts $43,393.88 ;

Held, That this was a sufficient compliance with the statute to save the trustees from liability. tees from liability. This provision of the statute being in one sense penal, should receive a liberal interpretation, and the benefit of any doubt as to the true meaning should in the absence of any evidence of an intent to evade the statute,

or to put forth a false or deceptive report, be given to a trustee, sought to be charged.

Plaintiff was also a manufacturing corporation organized under said Act. The debt with which defendants was sought to be charged, was for the purchase price of articles manufactured and sold by plaintiff, which manufacture was not within, or incidental to purposes for which plaintiff was incorporated, or within the powers conferred by its charter. Defendant claimed that the contract of sale was ultra vires, and could not be enforced.

Held, That the objection was untenable. The plea of ultra vires, as a general rule, will not prevail whether interposed for or against a corporation where it will work a legal wrong, and one who has received from a corporation, in services or property, the full consideration of his engagement to pay money cannot avail himself of that plea to defeat a recovery. 4 De G. M. & G. 19., L. R. (5. Ch. App.) 309-R. C. 4, ed. 748. 5 McG. 131; 29 Vt. 93. The defendants stand in no better or different position in respect to this plea than the corporation of which they are trustees. The liability of a trustee upon a failure to make the annual report is coexistent and concurrent with that of the corporation as to the debt sought to be charged upon him. Judgment reversed. Opinion by Allen J.

FRAUD.

NEW YORK COURT OF APPEALS. Nelson, Applt. v Luling et al., Respts. Decided Sept. 21, 1875.

Corporation, organization of Fraudulent act known to subscribing shareholder.

This was an action brought by plaintiff, as a stockholder of the N. Y. & B. S. S. Co., against defendants, as directors and incorporators of said company, claiming

that they conspired to organize the company for the purpose of defrauding the public, and that he had been induced to purchase some of the stock by the false and fraudulent representations of the defendants, especially of the defendants F. and C. It appeared that plaintiff was originally a stockholder and creditor of the N. A. L. S. S. Co., which owned three steamships. These were mortgaged to the Pacific Mail Co. and to defendants Luling & Co. The mortgages were foreclosed, and aforesaid title to the vessels was vested in defendant T. as trustee, with a view of organizing a company upon the basis of this property, and the shares were to be divided between Luling & Co. and the P. M. S. S. Co. in certain proportions, as provided by a written agreement, and the new corporation was to take the ships subject to the claim of Luling & Co. and other claims. The N. Y. & B. S. S. Co. was thereupon organized. The director offered to allow the creditors of the N. A. L. S. S. Co. to convert their debts into the stock of the new company on paying fifty per cent. in cash, and plaintiff and two others took 140 Shares of the stock under this arrangement, and no other stock was sold or issued, except to the original subscribers. No prospectus was issued and no concealment made of the arrangement under which the Company took the ships. When plaintiff was purchasing the stock, the defendants, T. & C., told him that the "capital stock was all paid in," and one or both predicted confidently the success of the enterprise. The capital was $1,000,000. The Company had received this sum from Luling & Co. and the P. M. Co., nominally to pay for the stock, but all except $40,000 was immediately returned to them on the transfer to the Company of the ships, (subject to liens) The paying in of the money and then taking it out again on the transfer of their ships, was a device for evading the general law (chap. 228, Laws of 1862), under which the corpora

tion was organized, requiring payment of the capital in cash. It appeared that plaintiff fully understood all the facts and circumstances when he purchased the

stock.

Plaintiff was non-suited.

Held, That plaintiff was properly nonsuited; that although if the reason of failure to comply with the statute, the N. Y. & B. S. S. Co., did not become a corporation de jure, and could not regularly issue stock, there might, perhaps, be a remedy in favor of one to whom stock was issued, on the ground of failure of consideration, yet it did not, nor did the fact that the nominal was greatly in excess of the actual capital make the directors liable for frand in an action by one cognizant of all the facts.

Judgm n affirmed.
Opinion by Andrews, J.

FRAUD OF CREDITORS-FIND

INGS OF FACT.

N. Y. COURT OF APPEALS.

erroneous, it would not entitle plaintiff to a reversal of the judgment; that the want of consideration alone did not

make the conveyance fraudulent as against creditors, 2 R. S. 137 § 4, and as there was no finding of fraud or request to find, the Court could not go behind the report to see if the evidence showed fraud.

It is the settled doctrine that a party seeking to reverse a judgment rendered upon the report of a refere e, on the ground that it was not warranted by the facts proved, must procure a finding of fact upon the question on which he relies, and this Court when there are no findings upon the question presented, will not look into the evidence to see whether facts were proved which, if found, would subvert the judgment. 52 N. Y., 28; 55 Id., 505.

Judgment affirmed.
Opinion by Andrews, J.

HABEAS CORPUS.

al. Respts.

Decided Nov. 9, 1875. Consideration.

Referee's findings. Court will not examine evidence to find facts, which if found would subvert the judgment.

This action was brought to set aside a conveyance of certain real estate by the defendant J. W. B., through a third person to his wife, upon the ground that it was fraudulent and made with intent to delay, hinder and defraud his creditors. The case was tried before a Referee, who found that there was an equitable consideration for the conveyance. There was no finding or request to find upon the question of the intent to hinder, delay or defraud creditors. The appellants claimed that there was no proof to authorize the finding of a consideration for the conveyance.

Held, That conceding the finding of the Referee upon this subject to have been

FIRST DEPT.

The People ex rel. Woolf, Applt., vs. Jacobs, Respt.

Decided Oct. 29, 1875.

Comtempt. Counsel Fee. Jurisdiction. Void Judgment.

Writ of certiorari issued to review proceedings on habeas corpus, in which the respondent, Aaron Jacobs, was discharged from the custody of the sheriff of the County of New York.

A judgment was recovered against the respondent in the Superior Court of the City of New York, on which, after filing a transcript of it and docketing it in the office of the Clerk of the County of New York, an execution was issued, and returned partly unsatisfied. Supplementary proceedings were thereupon taken against him, in which he was forbidden, by the order of one of the Judges of the Court, from making any transfer or other disposition of his property not by law

exempt from execution, and from all interference therewith during the continuance of the order. While that order was binding upon him, he sold and conveyed a farm owned by him in Ulster County, and for that violation of the order proceedings were taken against him before one of the judges of the same Court to punish him for contempt. An adjudication was then had, from which order an appeal was taken, and the order affirmed, and the defendant was brought before the Judge by an attachment, examined on interrogatories, and further proofs taken, and a further adjudication was made by which the value of the farm, sold in violation of the injunction, was ascertained to be the sum of $2,068,29, and the relators costs and expenses adjusted at the sum of $252.25.

The Court then directed that the defendant be committed to the county jail . for thirty days, and until a fine of $2,068 29, the value of the property conveyed by Jacobs, in violation of the injunction; $225 25 costs and expenses of reference, and $150 a reasonable counsel fee was paid.

A writ of habeas corpus was taken out, returnable before Judge Westbrook, to test the legality of the detention of respondent.

On the hearing had before Judge Westbrook the foregoing facts appearing from the sheriff's return, the prisoner was discharged from custody. The order made by Judge Westbrook was on the ground that the $150 fine imposed by the judge on the attachment proceedings, was in excess of the jurisdiction of the Court.

Held, that the Judge had no right, under the Statute, to impose the fine of

on the writ of habeas corpus, to hold that the whole proceeding was void on that account, for the jurisdiction of the officer was not exceeded by the mere addition of this unauthorized counsel fee. His jurisdiction as to amount was unlimited, and therefore could not be exceeded by the erroneous allowance of a specific sum, to which the relator had no right. It was erroneous to allow the counsel fee, but that was not an error which annulled the other two items lawfully required to to be paid.

The aggregate fine was made up of three distinct items, two of which, according to the facts stated in the commitment, were free from all objection.

The contempt proceedings in the Court below, including the order of commitment was a special proceeding within the meaning of the code, and was a proper subject of review in this Court, in which case it might properly have been modified, affirmed or reversed. The case does not come within the case of The People ex rel tweed vs. Liscomb, for the reason that the relator in that case had complied with what the court held to be the lawful portion of the judgment rendered against him. The defendant here should have first paid the fines legally and properly imposed before he came within that case. Until the respondent paid the sums legally adjudged against him, he was lawfully held in custody under the commitment.

The order appealed from should be reversed, with costs, and the defendant remanded to the custody of the Sheriff. Opinion by Daniels, J.; Davis, P. J and Brady, J., concurring.

INDORSERS.

permitted å fine, in the discretion of the Judge, to cover the damage to which the relator had been put by reason of the violation of the injunction, and his costs and expenses, which were adjusted at $252. 25. But it was error in the Judge