Page images
PDF
EPUB

Vol. IV.]

COMMONWEALTH v. WHITMAN.

(No. 10.

from the office of the secretary of state of New York, where the law required the original to be deposited. It appeared that the company bad undertaken to do business in the city of Boston under its New York organization, by delivering messages, and that this boy was one of its messengers. The judge instructed the jury “ that the court was not bound to say whether the company had or had not authority to do business under its New York charter in the city of Boston; but that if the jury found that it was incorporated under the law of New York as the District Telegraph Company, and attempted to do business here under its organization, and received this money and undertook to deliver it through this boy, as its agent, then it might be considered as having special ownership in this property, which would be sufficient under this indict

Held, that the evidence was rightly admitted, and that the defendant had no ground of exception to this instruction.

ment."

9

INDICTMENT in two counts for larceny: the first charging the ownership of the property as being in “ the District Telegraph Company, a corporation duly established by law;” and the second, as being in George G. Drew. Trial in the superior court, before Putnam, J., who allowed a bill of exceptions in substance as follows:

At the close of the whole evidence, and before the arguments to the jury, the attorney for the commonwealth elected to go to the jury upon the first count.

The evidence for the government tended to show that George G. Drew, a constable of the city of Boston, had an office in Joy's Building, on the second floor of the building, at the head of the first flight of stairs in the rear; that he had an execution against one Lowe, for collection, amounting to $40.65; that on April 19, 1876, the day named in the indictment, Lowe summoned a messenger boy, employed by the District Telegraph Company, to take the money to the office of Drew; that he put the money in an envelope directed to Drew, and gave it to the boy, together with a small package of cigars, the envelope being put under the string which was around the package; and that the boy started from the telegraph office, with the envelope and a receipt for the money handed him by the cashier, which he was to have signed, and proceeded to the office of Drew, in Joy's Building, He was then asked by the attorney for the government, “ Was there any one in the office ?” The witness answered, “Yes.” He was then asked, “ Who was it?” The witness answered, “That man," pointing to the defendant. To these questions and answers the defendant objected, but the judge admitted them.

The witness then testified that he asked the man if he was G. G. Drew; that he said, “ No;" that he asked him “ when he would be in ;” that he

; replied, “ He would be in soon, right in ;” that he asked him “if he was going to stay till Drew came in,” to which he replied, “ Yes;” that he then laid down the envelope on the table, took out the receipt, and asked him “if he would sign it; " and that he signed it with a pencil, “G. G. Drew, by George Jones.” The receipt had all been filled in, ready for the signature, before it left the telegraph office. This evidence as to asking him to sign the receipt, and the signing of it, and the paper itself, was objected to by the defendant, but the judge admitted it. The witness was also asked, “ Did the signing of the receipt have anything to do with your leaving the package ? ” This question was objected to, but the judge admitted it, and the boy answered, “Yes. I should not have left the package, if I had not got the receipt.”

Vol. IV.)

COMMONWEALTH v. WHITMAN.

(No. 10.

The government contended that the boy had been induced to part with the package by reason of some trick or artifice, or some inducement held out by the defendant, to lead the boy to believe that he had the right to sign the receipt, and receive the package. Upon this part of the case, the defendant asked the judge to rule as follows: "To constitute larceny by falsely personating or representing another, there must be an appreciative act of personation or representation. If the man who was in Drew's office when the boy left the package (whoever he was) made no representation that he was Drew, but distinctly told him that he was not Drew, then there was no larceny.” The judge gave this ruling, with this addition, “ unless the man held out some inducement to the boy to lead him to believe that he had the right to sign the receipt and receive the package for Drew.” The judge further, in charging the jury on this part of the case, said that the jury must find that these inducements were held out for the purpose of obtaining the package, the party offering them having the guilty purpose at the time to convert the property to his own use, and afterwards did so convert it, and also that the boy was led to part with the possession of the property solely by reason of said inducements; to which instruction no exception was taken.

The boy testified that when he left the office of the District Telegraph Company he took with him a written receipt, filled up except the signature. The date, twenty two minutes past two, on the receipt, was the hour at which he left the telegraph office, as marked by the cashier. One Howard testified that he had an office in Joy's Building, No. 12; that on April 19, about quarter to two o'clock, he left his office to go to Pemberton Square. He was asked, “ When you went out of your office, did you see Whitman ?” This question was objected to by the defendant, on the

ground that the time fixed by the telegraph company as the time when the boy left the office with the money was twenty-two minutes past two. The judge admitted the testimony. The witness stated that as he passed the door of Drew's office, at out thirteen minutes to two o'clock, he saw the defendant in Drew's office alone, the door being opened as he passed. As he went along Court Street to Pemberton Square he saw the time by the Advertiser's clock, and it was then ten or eleven minutes to two o'clock. On this point in the case, the defendant asked the judge to rule as follows : “ The whole of the receipt must be taken as true, so far as the government case is concerned. The time named therein must be assumed by the jury as correct, and the government must be held to concede that the transaction at Drew's office, whoever was the man there, was subsequent to that time, twenty-two minutes past two." The judge declined to give this ruling.

The government offered in evidence a receipt for a watch, written in ink, signed by the defendant, which he admitted to be his handwriting. The government then proposed to exhibit it to the jury for the purpose of comparison of hands, contending that the same person who wrote the paper writing also wrote the signature to the receipt which was handed to the boy. To the admission of this paper, for the purpose of comparison of hands, the defendant objected, but the judge admitted it, under exception. On this part of the case the defendant asked the judge to intruct the jury as follows : “ The only legitimate use of the watch receipt,

Vol. IV.]

COMMONWEALTH v. WHITMAN.

(No. 10.

[ocr errors]

in this case, is a confirmation of the testimony of the boy. If the jury, independently of the receipt, discredit the boy as to identity, then the receipt has no office in the case, and should be set out of consideration by the jury in the balance of the proofs.” The judge gave this instruction, with this addition, by way of explanation : “ The only legitimate use of the watch receipt is for the comparison of hands ; and if the jury believe that the same person wrote the receipt and the name attached to the receipt which the boy took, it is evidence tending to show that the man who was in the office, of whom the boy testified, was the defendant.”

Drew testified that about ten minutes to two o'clock he left his office to go down cellar; that he left no person there ; that he was gone some three or four minutes ; that on his return he found nobody there, but found a small package of cigars lying on the table, which were not there when he went out; that just before he went down cellar, the defendant, whom he said he knew, came up-stairs, looked into his door, caught his eye and went away out of his sight, but did not go up-stairs or down-stairs. The defendant asked the judge to instruct the jury, “ that Drew's testimony as to seeing the defendant in the entry was not in law confirmative of the boy or of Howard, especially when he fixes his time as earlier than ten minutes of two o'clock. The judge gave this instruction, with this addition : “ The only effect of Drew's testimony on this point is to show that Whitman was in the entry about the time when, from Drew's testimony, the money must have been left in his office ; and that this fact was only a circumstance, the weight of which it was for the jury to determine."

It appeared that the District Telegraph Company was organized under the general law of New York for the incorporation of telegraph companies. The government offered in evidence a printed book, purporting to contain the statutes of the State of New York, and proposed to put it in the case.

This book contained the general law above referred to, tit. 19, § 1, and purported to be published under the authority of the secretary of state of New York.

The defendant objected to the admission of the evidence; but the judge admitted it. The government then offered a copy of the articles of association under which the telegraph company was organized. The copy was an attested copy from the office of the secretary of state of New York, in which office the law required that the original should be deposited. There was no evidence by the witness who witnessed it. The defendant objected to the admission of this as evidence, but the judge admitted it. No other evidence was offered in reference to the corporation, or its authority to act in this state; but it appeared that it had undertaken to do business in the city of Boston under its New York organization by delivering messages from place to place ; and that this boy was one of their messengers. The defendant asked the judge to instruct the jury as follows: “If the jury find that the District Telegraph Company was chartered in New York, it would have no power and no authority to carry on business in this state, and in the city of Boston, until it had recorded a copy of the certificate in this state; and, not having authority here to do the business, it could not in law make the telegraph boy the agent of the District Telegraph Company, and this money would not be the prop

Vol. IV.)

HOLLAND v. DRAKE.

[No. 10.

erty of that company, nor would it be in its possession while in the boy's hands.”

The judge declined to give this instruction; but did instruct the jury, “ that the court was not bound to say whether the company had or bad not authority to do business under its New York charter, in the city of Boston ; but that, if the jury found that it was incorporated, under the law of New York, as the District Telegraph Company, and attempted to do business here under its organization, and received this money and undertook to deliver it through this boy, as its agent, then it might be considered as having special ownership in this property, which would be sufficient under this indictment.” At the end of the government's case, the defendant moved the judge to order a verdict for the defendant, on the count which alleged the ownership of the property to be in the District Telegraph Company, on the ground that there was no evidence of its capacity to own the property named, or its ownership thereof The judge declined so to order. The defendant made a like motion as to the other count, on the ground that there was no evidence to show ownership or custody of the property in Drew, but the judge overruled the motion.

The jury returned a verdict of guiity; and the defendant alleged exceptions. G. W. Searle, for the defendant. C. R. Train, Attorney General, for the Commonwealth. THE COURT

Overruled the exceptions.

SUPREME COURT OF OHIO.

(To appear in 29 Ohio St.)

RATIFICATION.

ASSIGNMENT BY ONE MEMBER OF FORMER FIRM.

ATTACHMENT, ETC.

HOLLAND v. DRAKE.

1. One of the members of an insolvent firm cannot, either before or after dissolution of

the partnership, make a valid assignment of all its effects for the benefit of creditors,

against the will of a copartner, or without his assent when he is present or accessible. 2. Where an assignment is so made against the will of the non-executing partner, or

when he is present and not assenting, and he subsequently ratifies the assignment, the ratification will relate back to the time of executing the assignment, and give it effect from that date ; but not so as to defeat the rights of third persons, acquired in good

faith in the mean time. 3. Where in such a case an attachment had been levied upon the property, between the

date of the assignment and its ratification, and by agreement between the attaching creditor, the assignee, and the partners, the property was delivered by the sheriff to the assignee, to be by him sold in place of the sheriff, and the proceeds to stand in place of the property, and be applied to the attaching creditor's judgment when obtained, if the court should hold the attachment good; in an action by the attaching creditor against the assignee and the partners, to have the proceeds of the property so applied : Held, that the defendants were estopped from setting up as a defence that the lien of the attachment was lost by delivery of the property to the assignee under

said agreement. 4. In such action it was not necessary to make the partnership creditors parties de

fendant.

Vol. IV.)

HOLLAND v. DRAKE.

(No. 10.

TRACY and McKay were partners in the "grain and feed business," in the city of Cleveland, Tracy being the active and managing member. On the 13th of December, 1867, the firm then being insolvent, McKay caused a notice of the dissolution of the partnership to be published in the city papers; and afterward, on the 20th of the same month, he executed to J. M. Drake, and filed in the probate court, a general assignment of the property and effects of the company, for the benefit of all its creditors. On the last named day, but subsequently to the execution and filing of the assignment, Holland and Pettitt caused part of the property so assigned to be seized upon an attachment issued in an action which they had lately brought against the firm, and in which they afterward recovered judgment. Prior to the execution of the assignment Drake had consented to act as such assignee, but the assignment was not in fact delivered to him, or he made aware of its existence, until some days after the levy of the attachment; but, when notified thereof, he accepted the same, and qualified as such_trustee. At the time McKay executed the assignment, his copartner, Tracy, was in the city, but was not consulted, and when informed by McKay of its execution, refused to assent, and he did not assent until some time after the levy of the attachment. By mutual agreement between the parties interested, Holland and Pettitt, Drake and McKay, the attached property was then delivered by the sheriff to Drake, as assignee, “to be sold by him instead of the sheriff,” and the proceeds to “stand in place of the property and be applied in payment of Pettitt and Holland's judgment, in case the court should hold the attachment a good lien."

The assignee sold the property in pursuance of this agreement, and brought the money into the probate court, and Holland and Pettitt filed their petition therein against Drake, McKay, and Tracy, asking to have the money adjudged and paid to them, in preference of the other credit

On hearing of this petition it was dismissed, the probate court holding that the assignment had precedence of the attachment, and that the fund should be distributed pro rata among all the creditors. On proceedings in error this judgment was affirmed in the common pleas, and Holland and Pettitt having filed a petition in error in the district court to reverse the judgment of affirmance, the case was reserved for decision here.

Estep f Burke, for plaintiff in error. The important question in this case is whether one partner, against the refusal of his copartner to join therein, can make a valid assignment of the partnership assets, to a trustee of his own selection ?

We maintain he cannot, and refer to the following authorities : Burrill on Assignments, 43–65, inclusive; Harrison v. Sterry, 5 Cranch, 289; Pearpont v. Graham, 4 Wash. C. C. 232; Deckert v. Gilbert, 4 Watts & Serg. 454; Kirby v. Ingersoll, 1 Harrington, 172; Hughes v. Ellison, 5 Mo. 463; Drake v. Rogers, 6 Mo. 317; Dana v. Lull, 17 Vt. 390; Deming v. Colt, 3 Sandf. 284; 2 Ib. 292; Hayes v. Heyer, 2 Ib. 284, 293; Kemp v. Darnley, Duer, 1; Fisher v. Murray, 1 E. D. Smith, 341.

Elwell f Marvin, for Drake. The only objection that can be raised to said assignment is that it is a fraud on the rights of the partners, inasmuch as it destroys the partnership. If this is a wrong, it certainly

ors.

[ocr errors]

a

« PreviousContinue »