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Opinion of the Court, per DENIO, Ch. J.
interested parties is proverbial. If you allow such parties to adopt a form of words less binding upon their conscience than a direct affirmation would be, we weaken to that extent the safeguards which the law has provided.
It is said that a party may be convicted of perjury in swearing to his belief of that which he knows to be untrue. It appears that this is so; but the evidence in such a case, and in one where a party swears directly, is quite different. In the former the prosecution, in addition to negativing the principal fact, would be obliged to establish the corrupt motive by affirmative proof. In the other, if the main fact were disproved by sufficient evidence, it would rest upon the accused to show that the swearing was not corrupt, but the result of mistake, or the like. The onus should rest on him, and an affidavit which will invert the order of proof ought not to be held sufficient. Such an oath is not a responsible
It follows that the statements in these cases were not verified according to law.
The plaintiff in the two judgments, in opposing the motion to set them aside, showed satisfactorily that the error arose from the inadvertence of the attorney employed to enter up the judgments. The plaintiff produced a list of the notes which he had given to and indorsed for the defendant, and the latter attended for the purpose of making oath in legal forin to the statements, and he signed and swore to the affidavit which was prepared for him, supposing it to be sufficient in form and substance. Both the plaintiff and defendant, in opposing the motion, made oath to the existence and validity of the demands for which the judgments were confessed, and to the good faith of the proceeding. The Supreme Court, I think, should have allowed the plaintiff, on payment of the costs of the motion, to amend the statements by placing on file statements properly verified, and in default of doing so the court should have granted the motion. (Mitchell v. Van Buren, 27 N. Y., 300.)
The facts set out in the statement, in which the judgment for $1,117.35 was entered, are quite sufficient.
Te bet Opinion of the Court, per DENIO, Ch. J.
The other judgment can be sustained, if at all, only as one given to secure a contingent liability. It is not sufficient even in that aspect, and I am unable to uphold it. Some of the notes which the plaintiff had indorsed for the accommodation of the defendant were overdue, and others of them were running to maturity. As to those where the day of payment had passed, there is no allegation that the plaintiff had been charged as indorser. There is, it is true, an allegation that the defendant is indebted to the plaintiff for the amount of all the notes, and the judgment is confessed for that amount. But there was, strictly speaking, no indebtedness for either of the notes, and no pretense for it as to those which had not matured, though there was a proper occasion for confessing judgment for them as for a contingent liability. But it should be shown that those overdue had been protested. The plaintiff's affidavit read on opposing the motion, proves that these notes had been regularly protested, and that he had been charged. As it was wholly the fault of the attorney that a statement of that fact was omitted in the written confession, I think we should likewise allow an amendment in that respect. The statement that the indorsed notes had been negotiated by the defendant was sufficient.
The Supreme Court was correct in reducing the amount of the judgment by deducting the aggregate of the notes whose amount was not stated, sustaining it for the residue so far as concerned that omission, notwithstanding the error.
The order appealed from must be reversed, and the record remitted, with a direction to the Supreme Court to allow the plaintiff to amend the statements in the particulars which have been mentioned; and that if such amendment be made, and the costs at General and Special Term paid within a time to be fixed by the court, then the motion to set aside the judgments is to be denied. If such amendment and payment shall not be made within the time fixed, the judgments are to be set aside, with costs.
All the judges concurring,
Eliza ROBBINS, Respondent, v. Edwin Frrz et al., Appellants.
The assignor of the plaintiff owed the plaintiff $500, for which she held his note. He assigned to her property to the amount of $900, taking up his note, she agreeing that after collecting enough to pay her note, she would apply the balance in payment of the claims of two other creditors of the assignor; and if anything remained after that, to distribute the balance among the remaining creditors, &c. The defendants, as attaching creditors of the assignor, took the property assigned to the plaintiff, for which suit was brought. The jury found that there was no fraud in the assignment, and the only question was whether the plaintiff was entitled to recover the full value of the property, or only the amount of what was due to her from the assignor.
HELD, that the question of fraud being found in favor of the plaintiff, she was entitled to recover the full value of the property, instead of the amount only due her from the assignor, and that any error in the charge of the judge respecting that rule of recovery, the defendant had no right to complain of, as the finding under it should have been for the full value of the property.
Statement of case.
CALVIN J. GARDNER V. THE HAMILTON MUTUAL INSURANCE
Where, by an act of the legislature of Massachusetts three independent mutual
insurance companies are incorporated into one, under a new name, with a provision that the act “shall not affect the legal rights of any person," nor take effect until it shall be accepted by the members of said corporations respectively, at meetings called for that purpose," a member of one of the old corporations, not expressly assenting to such act, is not, by the mere force
thereof, constituted a member of the new organization. His rights as a member of one of the original corporations, are in no way
impaired by the act creating the new corporation; and he or his assignee must seek any remedies they may be entitled to, against the original corporation
of which he was a member. Until
, by his assent, he becomes a member of the new corporation, there is no privity of contract between him and such corporation.
ACTION on policy of insurance against loss by fire.
On the 15th of February, 1852, the Bowditch Mutual Insurance Company issued the policy upon which the action is brought, to one John Hitchins, for $1,000, for five years, upon a dwelling house owned by him in the city of Troy. The Bowditch Mutual Insurance Company was, at the time, a corporation created by the legislature of Massachusetts, and located at Salem in that State. On the 25th August, 1854, the property was totally destroyed by fire, and on or before the 5th September, 1854, proofs of loss were duly served upon the defendants, and on the 11th December, 1854, Hitchins sold and assigned his claim thereon to the plaintiff.
The alleged connection of the defendants with the policy arises out of an act of the legislature of Massachusetts, passed 10th February, 1852, as follows:
$1. The members of the Bowditch Mutual Fire Insurance Company, and of the Essex Mutual Fire Insurance Company, both established in Salem, and the members of the Lawrence Mutual Fire Insurance Company, established in Lawrence, are hereby made a corporation, by the name of the Hamilton
Statement of case.
Mutual Insurance Company, in Salem, for the term of 28 years, for the purpose of insuring dwelling houses and other buildings, and personal property, against loss by fire, with all the powers and privileges, and subject to all the duties, liabilities and restrictions, set forth in the 37th and 44th chapters of the Revised Statutes, and in all subsequent acts relating to mutual fire insurance companies; provided that said Bowditch Mutual Fire Insurance Company, said Essex Mutual Fire Insurance Company, and said Lawrence Mutual Fire Insurance Company, shall respectively continue to exist as corporations, for the term of two years from the passage of this act, for the purpose of closing their affairs; and also provided that this act shall not affect the legal rights of any person.
$ 2. This act shall not take effect until it shall be accepted by the members of said corporations, respectively, at meetings called for that purpose.
This law took effect thirty days after its passage. Meetings of the members of each of the three companies were held on the 30th March, 1852. At each of these meetings, the inembers attending voted to accept the new charter, and on the same day the Hamilton Mutual Insurance Company was organized by the election of officers. Hitchins was not present at the meeting of the members of the Bowditch Mutual Insurance Company, or never in any way consented to become a member of the new corporation, unless the presentation of a claim against the defendants, for the amount of the insurance, accompanied with proof of the loss, constituted such consent. Such claim and proof of loss were presented within the period fixed by the by-laws of the company, but rejected.
The referee held and found as matter of law that by force of these proceedings, Hitchins became a member of the Hamilton Mutual Insurance Company, and entitled to the same rights, and subject to the same liabilities as though originally insured in that company.
The referee further found as facts, that after the execution of the policy (and in fact in the spring of 1852), extensive alterations and repairs of the building insured, were made