sions of law" found by the Court, and no conclusions of law are stated, ex- cept such as are affirmed in the judg- ment or order entered on the decision of the Court; then the conclusions of law so affirmed, should be regarded as the Court's conclusions of law upon the particular facts so stated to have been found. The only conclusions sta- ted in such a judgment or order, which can be, properly, treated as conclusions of fact, and as intended to have been so stated, are such, as when found at all, must, from their nature, have been necessarily found as facts. id.
3. The Court, on the trial of such an ac- tion, should, by its decision, dispose of all questions of right and liability. An order entered on the decision of the ac- tion, which disposes of only some of the questions raised by the issues, and orders a reference, expressly reserving the determination of other questions until the coming in of the report of the referee, is not an order, on an appeal from which, any decision actually made on the trial, can be reviewed, except the competency of the Court to direct such an inquiry by the referee, as the order provides for. id.
4. When such a transfer by one partner to the other, is made on an undertak- ing of the latter to pay all the partner- ship debts, and also, to pay liabilities created by the partner, (who so trans- fers), in the firm's name, for his own benefit, and the interest so transferred is worth less than the amount of his part of the debts so assumed to be paid, and parts of the transferred pro- perty have been so applied, and the residue is being, properly, so applied, the individual creditors of the debtor- partner cannot, in the nature of things, be defrauded, by such a transfer. No- thing is transferred to which they have any right. On such a state of facts, an actual intent to defraud, should not be found, except upon the most clear and satisfactory evidence of such an in- tent. id.
5. When, at the time of such a transfer, three other papers are executed, one being a dissolution of the firm, and one being a paper stipulating to hire the assigning partner and his wife, board them, and pay them $5000 per annum, if the profits of the future business
7. The agreement for hiring the assign- ing partner and his wife, when, upon the other evidence, the transaction ap- pears to be honest, and upon full con- sideration, will not necessarily establish a fraudulent intent, when by the terms of such agreement the transferee is not to pay any thing for their future ser- vices besides boarding them, unless fu- ture profits are earned, and their ser- vices are clearly worth more than their board. There is an obvious distinction between such a transaction, and the case of a debtor assigning his property upon terms unjust and inequitable as to his creditors, upon the condition of obtaining wholly, or in part, a future support out of the assigned property, as a part of the consideration of its transfer.
Such a mortgage is not void upon its face, nor do its terms demonstrate a fraudulent intent. Upon the question of the intent with which it was made, the defendant may prove any facts that a Court of Equity would allow to be alleged and proved in an action to se- cure results not provided for by its terms, but on settled principles held to be consistent with it. And if, on the whole evidence, it appears to have been made with an honest intent, a transfer of other property by another instru- ment of the same date, will not be held fraudulent merely because such mortgage, does not on its face disclose the precise debts or liabilities it was made to secure.
9. Papers of the same date, and between
the same parties, when they do not re-
fer to each other, nor in fact relate to | 2. the same subject matter, are not, ne- cessarily, to be deemed part and par- cel of the same transaction, in such sense that if one cannot be sustained as against the creditors of one of such parties, the others must, as a matter of course, be held fraudulent, or void. id.
Vide USURY, 1.
SURETY, 1, 2, 3; and ante, 449.
Second. That the conveyance to Ash, in its terms and upon its face, was ex- actly such as Clarke, under the sta- tutes and orders before mentioned, was fully authorized to make. id.
3. Third.-That this conveyance, being a deed of bargain and sale, and its ex- ecution and delivery being admitted, was sufficient proof, in the first in- stance, that it was in reality founded upon the pecuniary consideration there- in stated; and that the acknowledg ment therein contained was also suffi- cient proof that the consideration men- tioned was, in fact, paid.
This was an equity suit, and its objects were to compel the defendant Daven- port to surrender to the plaintiff's the 4. possession of certain lots in the city of New York, and to convey to them a clear title, and to account to them for the rents and profits received by him during his possession. The plaintiff's claimed title as devisees under the will of Mary Clarke, who died seized of the premises. The defendant Davenport derived his title by mesne conveyances from one Thomas Ash, Jr., to whom the lots were sold and conveyed by Thomas B. Clarke, the father of the plaintiffs, by virtue, it was alleged, of his powers as a trustee under certain acts of the Legislature and orders of the Chancellor. The plaintiff's insisted that the orders of the Chancellor were void, as exceeding his authority under the acts of the Legislature, and also insisted, upon other grounds, that the sale and conveyance to Ash were frau- dulent and void. They also insisted that the defendant was bound to prove the money consideration, stated in the deed to Ash; and that no such proof having been given, the Court was bound to hold, that as against the plaintiffs the conveyance was void. Clarke et al. v. Davenport. 95
Fifth.-That the burthen of proof to impeach the validity of the deed, by showing a different consideration than that therein stated, was cast upon the plaintiffs, and that the allegations in the bill which were put in issue by the answer, that the true and only consi- deration was the satisfaction of an an- tecedent debt contracted by Clarke for his personal benefit, were wholly un- sustained by proof. id.
Sixth.-That the title acquired by Ash was not impaired or affected by an al- leged misapplication by Clarke of the purchase money received by him. The case not belonging to any class of trusts in which, as the law formerly stood, a purchaser from a trustee was bound to see that the purchase money was pro- perly applied to the purpose of the trust. Ed.
7. Seventh.-That there was no evidence that could justify the Court in saying, that the orders of the Chancellor, un- der which the sale and conveyance to Ash were made, were procured, as is alleged, by a concealment and misre- presentation of material facts; but that, on the contrary, the truth of the re- presentations contained in the petition of Clarke, upon which the orders were founded, was established by the report of the Master to whom the petition was referred, and by the confirmation of that report by the Chancellor.
to grant leases for a term not exceed- ing twenty-one years from the making thereof.
8. Eighth. That had the clearest proof] 15. The testator authorized his trustees been given, that the orders in question were procured by fraud, yet, as they were regular and valid on their face, the fraud would not have affected the title of an innocent purchaser, and there was nothing in the pleadings or proofs to show that actual or constructive no- tice was imputable to Ash. id.
9. J. Thomas, by his last will, devised all his estate to trustees, in trust, to apply so much of the rents and profits as might be necessary to the support and maintenance of his wife during her life, and to divide the residue among his three children named in the will, dur- ing their lives. Two, only, of the chil- dren, and the wife, survived the testa- tor. Griffen v. Ford. 123 10. Held, that the trust created no sus- pense of the power of alienation be- yond the lives of the two children liv- ing at the death of the testator.
Held, that these words confined the trus- tees to a grant of leases in possession, and that when a power to lease is thus limited, a lease, to commence in pos- session upon a future day, is wholly void.
16. Held, therefore, that a lease in ques- tion, which was executed and delivered on the 20th of December, 1849, for a term of years not to commence until the 1st of May, 1850, was void in its creation upon its face. id.
17. The testator directed that his trus- tees, in making leases, should reserve the best and most improved rent that could be gotten; and it was proved upon the trial, and found by the Judge, that when the lease in question was executed, a much higher rent than that reserved could have been obtained. id.
Held, that a trustee, directed to obtain the best rent, is bound to the exercise of reasonable diligence, as well as of good faith; and as it has clearly ap- peared that this diligence had not been used, the lease in question must, upon that ground, be adjudged to be void. id.
18. A lease for a longer term of years than is authorized by the power under which it is made, although bad at law, is good in equity for a term correspond- ing with the power, and is void only for the excess. id.
in the R. S., that had been relied on in support of the objection. (§ 60, 1 R. S. p. 729.) id.
menced such suit, that it should be brought by his son as owner, but could be maintained by the father as bailee; nor do such facts estop the plaintiff from claiming title as owner, as against de- fendants who have no claim of title, or right of possession conferred, or at- tempted to be conferred on them, by any one claiming to own them, or the right to have the possession of them. id.
4. Although a defendant may be entitled, equitably, to an allowance, on the trial, for services rendered and materials furnished to the plaintiff after suit brought, yet, if on the trial an inquiry into them, subsequent to suit brought, is excluded by the Court on the de- fendant's motion and objection, such defendant cannot object, on appeal from the judgment, that he was not allowed for such matters furnished subsequent to suit brought. Ford v. David. 569
1. In an action, to recover the possession of family portraits, by one having a paper title from the original owner (the plaintiff's paternal grandmother); it ap- pearing that the plaintiff had permitted his father to have the possession of them for several years, and that the latter took them to the residence of the 5. defendants, and left them there tempo- rarily, (one defendant being his daugh- ter, and the other the husband of such daughter,) the plaintiff does not forfeit his right of property, because the de- fendants, to his knowledge, and with- out objection from him, repaired the pictures while in their possession, at their own expense, they not then claim- ing title, and the plaintiff not having disclaimed it. Hunt v. Moultrie and wife. 531
2. Declarations, made by the plaintiff, tending to show that he was not the owner, though competent as evidence against him on the question of title, cannot operate as an estoppel to his claim of property, when it does not ap- pear that such declarations ever came to the knowledge of the defendants, or have been acted upon by them. id.
3. The facts that; the father, in his life- time, brought an action against the de- fendants, and which was pending when he died, to recover possession of the portraits, and made an affidavit that he was the owner of them, and that the plaintiff signed an undertaking in that action as surety for his father, is no bar to an action by the son, to recover the property, after his father's death, it not appearing that the son ever saw such affidavit, and it also appearing that the father was advised when he com-
When a plaintiff, under a contract be- tween him and one of several defend- ants, and under subsequent contracts between such defendant and his co- defendants, in relation to the same matter, claims, in good faith, a right to be boarded without charge, as due to him upon a just construction of such contracts, and such board has been furnished under such claim, and as of right due to the plaintiff, the defend- ants so furnishing it cannot recover of the plaintiff for its value, though the Court may think the plaintiff's construc- tion of the contracts erroneous.
Vide SHERIFF, 6.
LIFE INSURANCE, 5.
Vide LANDLORD and TENANT, 1, 2. LESSOR and LESSEE, 2.
2. When improper or irrelevant evidence has been admitted by a referee, the error in its admission will be disre- garded if it manifestly appears that the evidence could not have influenced his decision, and that his conclusions must have been the same, had it not been received. Belmont v. Coleman. 188
respect to such matters, notwithstand-17. When an account has been rendered ing the evidence sought to be contra- to a defendant which, on the trial, he dicted was elicited by his cross-exami- refuses to produce, and which, it ap- nation. Mills v. Carnly. pears, was transcribed from the ledger of the plaintiffs, the account in the led- ger is good secondary evidence. But when no reason is shown for not pro- ducing the ledger, a copy of the ac- count taken from the ledger cannot be received, as it is plainly not the best secondary evidence which, the plain- tiffs had it in their power, to give. The American cases have established that there are grades in secondary evi- dence, and the true rule deducible from them is, undoubtedly, that laid down by Mr. GREENLEAF; namely, "That, if from the nature of the case itself it is manifest that a more satisfactory kind of secondary evidence exists the party will be required to produce it, but when the nature of the case does not disclose the existence of such better evidence, the objector must prove its existence, and must also prove that it was known to the other party in sea- son to have been produced on the trial."
3. A bill of exchange, drawn upon an incorporated Company, and accepted by its president, is presumptive evi- dence that it was founded on a suffi- cient consideration and was drawn for legitimate purposes within the purview of the charter of the Company.
4. In an action in which the plaintiff relies upon the validity of the bill as binding the Company, the burthen of proof, when its validity is denied, as drawn for purposes not within the lawful powers of the Company, rests upon the defendant. id.
5. In an action against an individual stockholder of an incorporated Com- pany, by whose charter the stockhold- ers are made liable for its unsatisfied debts-the record of a judgment against the Company, and an execution thereon returned unsatisfied, are prima facie evidence that the debt so recovered was a valid debt of the Company, and the burthen of proving collusion or mistake is cast upon the defendant. id.
6A bank check, in the hands of the drawer, paid by him, is not evidence, per se, of a debt due to him from the payee; but when it is shown that the check was in fact lent to the payee, it may be read in evidence to prove the amount of the loan. A draft, in the hands of an acceptor, and paid by him, is not evidence of a debt due to him from the drawer; but on the contrary, the presumption of law is, that the draft was drawn against funds of the drawer, then in his hands. In order to charge the drawer of a bank check, it is not necessary to show presentment for pay- ment and refusal, if it is proved that, at the time, he had no funds in the bank upon which the check was drawn. Reddington v. Gilman. 235
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