Statement of case.

bonds in suit is duly proved, and is presumed to have been regularly affixed. (Borst v. Empie, 5 N. Y. 33; Stephens on Ev. 130, 420; McPherson v. Rathbone, 11 Wend. 97; 5 Cow. 485; 9 id. 148; 2 Starkie on Ev. 341; Solomon's Lodge v. Montmolin, 58 Ga. 547; Trustees, etc. v. McKechnie, 19 Hun, 62; Tenny v. L. Co., 43 N. H. 343; Steboins v. Merritt, 10 Cush. 27, 34; Angel & Ames on Corp., $ 217, 224, 226; Commercial Bk. v. Kortwright, 22 Wend. 345; Lovett v. S. S. M. Co., 6 Paige, 54; Johnson v. Bush, 3 Barb. Ch. 207; Bk. of Vergennes v. Wilson, 7 Hill, 91, 95; Angel & Ames on Corp., § 224; Reed v. Bradley, 17 Ill. 321; Brownker v. Atkins, Skin. 2; Hoyt v. Thompson, 5 N. Y. 335; Mill Dam Foundry Co. v. Horey, 21 Pick. 417; Corrigan v. T. D. F. Co., 5 N. J. Eq. 52; Trustees, etc. v. McKechnie, 19 Hun, 62; Me Kay v. Lasher, 50 id. 383; Hall v. Van Vranken, 28 id. 403.) The obligation of the company to pay the bonds in suit was a debt within the meaning of the statute. (People v. Snyder, 41 N. Y. 397; 51 Barb. 589; Leggett v. Bank, 24 N. Y. 291; Jones v. Barlow, 62 id. 202, 212; 3 Blackstone's Comm. 154; 2 Hill, 220; Vincent v. Sands, 1 J. & S. 511; 58 N. Y. 673; Vernon v. Palmer, 16 id. 231; 14 Wkly. Dig. 324; Jones v. Barlow, 62 N. Y. 204; Andrews V. Murray, 9 Abb. Pr. 8; Denny v. M. Co., 2 Hill, 233; Garrison v. Hore, 3 E. D. Smith, 458.) The corporation was liable to pay the bonds without proof of sealing at all the instruments being apparently bonds of the corporation. (Angel & Ames on Corp. [10th ed.] $ 219, 231, 236, 237, 296; Barry v. M. E. Co., 1 Sandf. Ch. 280; Curtiss v. Leavitt, 15 N. Y. 9, 62; Smith v. Lar, 21 id. 296; Daniel on Neg. Ins., § 382; Leinhanf v. Calman, 110 N. Y. 50, 54.) The defendant's contention that plaintiff was, at most, only entitled to interest on the amount of the eleven bonds from the commencement of the action, cannot be sustained. (Blake v. Griswold, 103 N. Y. 430; Trinity Church v. Vanderbilt, 98 id. 170; Smedes v. Houghtalling, 3 Ca. 48; People v. New York, 5 Cow. 331; 1 Am. L. C. 497; Spencer v. Pierce, 5 R. I. 63; Durfee v. O'Brien, 6 N. E. R. 492; Palmer v. Conly, 4 Denio, 374,

Statement of case.

376; Cutlers v. Ruskin, Skin. 363; Crosset v. Ogilvie, 5 Brown's P. C. 527; College v. Harrison, 9 B. & C. 524; Potter's Dwarris on Stat. 254; North v. Wingate, Cro. Car. 559; Mayor, etc., v. Werring, Willes, 440; Company of Cutlers v. Ruslin, Skin. 365.) The presumption from the evidence is that no annual report was filed, and the question as to the filing of the report was properly taken from the jury. (Mandeville v. Reynolds, 68 N. Y. 528; 5 Hun, 338; Hall v. Kellogg, 16 Mich. 135; Lazier v. Westcott, 26 N. Y. 146; Williams v. E. I. Co., 3 East, 192; King v. Hawkins, 10 id. 211, 216; Wood v. Morehouse, 45 N. Y. 368; Briggs v. Waldron, 83 N. Y. 582, 585; Brackett v. Griswold, 103 id. 430; Brown v. Terry, 10 J. & S. 1; 2 R. S. [2d ed.] 573; Rogers v. Jackson, 19 Wend. 383; Laws on Pres. Ev. 53; Whart. on Ev. $$ 368, 1318; People v. Prase, 27 N. Y. 45; Comm. v. Bradford, 9 Metc. 268; 1 Greenl. on Ev. § 80; Beardstown v. Virginius, 76 Ill. 44.) The amendment by chap. 510, Laws 1875, did not relieve, in all cases, trustees who had theretofore become liable for the penalty from such liability. Moore v. Mansert, 49 N. Y. 332, 335; Ely v. Horton, 15 id. 595; Trinity Church v. Vanderbilt, 98 id. 170; Vernon v. Palmer, 16 J. & S. 236; Halstead v. Dodge, 19 id. 169, 176; Williams v. Potter, 2 Barb. 316; Palmer v. Conley, 4 Den. 374; Boren v. Losee, 5 Hill, 221; Van Rensselaer v. Snyder, 9 Barb. 302; Shreveport v. Cote, 129 U. S. 36.) The General Term erred in reversing the judgment in favor of plaintiff herein. (Union Bank v. Pratt, 36 N. Y. 631; Code Civ. Pro., § 522; Oechs v. Cook, 3 Duer, 161; Miller v. White, 8 Abb. [N. S.] 46; Rector v. Clark, 78 N. Y. 21.) The statute of limitations is no defense to this action. (Code Civ. Pro., § 401; Flash v. Conn, 109 U. S. 371; Nat. Bank v. Price, 33 Md. 487; Cuykendall v. Corning, 10 Fed. Rep. 342.) The verdict of the jury upon the questions submitted to them should be held conclusive upon the defendant. (Baylies on N. T. & App. 343, 344; Cheney v. R. R. Co., 16 Hun, 415; Morss v. Sherrill, 63 Barb. 21; Comrs, v. Backus, 29 How. 33; Holman v. Dord, 12 Barb. 336.) None of the

Statement of case.

defendant's exceptions to the admission of testimony were well taken. (Crooke v. Mali, 11 Barb. 205; Walter v. James, 11 Wkly. Dig. 508; Pepper v. Haight, 20 Barb. 429; Snell v. Snell, 3 Abb. Pr. 430; Jackson v. Smith, 16 id. 201; Smith v. Floyd, 18 Barb. 522; Edington v. M. L. Ins. Co., 5 Hun, 178; Clark v. Bruce, 12 id. 272; Levin v. Russell, 42 N. Y. 251; Ward v. Kilpatrick, 85 id. 413; Mead v. Shea, 92 id. 122; Briggs v. Wheeler, 16 Hun, 583; S. P. Co. v. Monheimer, 9 J. & S. 184; Bragne v. Lord, Id. 193; Sutherland v. N. Y. C. & II. R. R. R.Co., Id. 17; Milliner v. Lucas, 3 Hun, 496; Erwin v. N. S. Co., 8 Wkly. Dig. 382.) The exception to the denial of the motion to dismiss the complaint and the exeception to the refusals to charge, and submit certain questions to the jury were not well taken. (Cummings v. Webster, 43 Me. 192; Herrick v. Hoppock, 15 N. Y. 409.) The order of revivor was properly made, and any motion to dismiss this appeal to the Court of Appeals on the ground that the right to thus appeal did not survive the death of plaintiff's testator, or for any other reason, should be denied. (Brackett v. Griswold, 103 N. Y. 425; Blake v. Griswold, 104 id. 613; Wood v. Phillips, 11 Abb. Pr. [N. S.] 1; Gardner v. Barney, 24 How. Pr. 467; 4 Abb. [N. S.] 251; Hinckley v. Kreitz, 58 N. Y. 583; Code Civ. Pro., §§ 1294, 1296, 1298.)

Thomas G. Shearman for respondent. This court has been constantly growing more emphatic in its characterization of an action against a trustee, under section 12, of the act of 1848, as highly penal. (Garrison v. Howe, 17 N. Y. 458; W. A. Co. v. Barlow, 63 id. 62; Wiles v. Suydam, 64 id. 173; Knox v. Baldwin, 80 id. 610; Bruce v. Platt, 80 id. 379; Gadsden v. Woodward, 103 id. 242; Whitaker v. Masterson, 106 id. 280; Miller v. White, 50 id. 137; Dabney v. Stevens, 10 Abb. [N. S.] 39; Van Amburgh v. Baker, 81 N. Y. 46; P. &c., Co. v. Hotchkiss, 82 id. 471; Reed v. Keese, 5 J. & S. 269; 60 N. Y. 616; Deming v. Puleston, 2 Robt. 309; 55 N. Y. 655; Cameron v. Seaman 69 id. 398; S. &c. Q. Co.

Statement of case.

v. Bliss, 29 id. 297.) There is nothing in the claim of this plaintiff to commend it to the favor of the court. On the contrary, it ought to be treated with disfavor and suspicion. Carr v. Risher, 20 Abb. [N. C.] 176; Brown v. Smith, 13 Hun, 408; 80 N. Y. 650; Pugh v. Hurtt, 52 How. Pr. 22.) The company had no power to issue these bonds. (Laws of 1864, chap. 517; Laws of 1871, chap. 481.) Even if the company had power to issue these bonds, the plaintiff did not prove that they were ever issued or authorized by the company. (D'Arey v. T. &c., R. Co., 4 H. & C. 463; W. A. Co. v. Barlow, 68 N. Y. 34; L., etc., Ins. Co. v. M. F. Ins. Co., 7 Wend. 31; Adriance v. Roome, 52 Barb. 399; Dabney v. Sterens, 10 Abb. [N. S.] 39, 45; Risley v. I., etc., R. R. Co., 1 Hun, 202; De Bost v. A. P. Co., 35 id. 386; McCullough v. Moss, 5 Den. 567; W. R. R. Co. v. Bayne, 11 Hun, 166; 75 N. Y. 1; Alexander v. Cauldwell, 83 id. 480.) The trial judge erred in charging the jury, that the seal of the corporation to the bonds in suit had been proved, and in refusing to submit that question to them, as he did, in effect, by telling them that the only question of fact to be submitted to them was whether Mr. Risher was president of the company at the time when the bonds were made; and the defendant's exception to these portions of the charge were well taken. (Jackson v. Pratt, 10 Johns. 381; Mann v. Pentz, 2 Sandf. Ch. 257; Den v. Vreelandt, 7 N. J. Law, 352; Moises v. Thompson, 8 T. R. 303; F., etc., T. Co. v. McCullough, 25 Penn. St. 303; Leazure v. Hillegas, 7 S. & R., 313; Foster v. Shaw, Id. 156.) In addition to establishing the existence of the debt in 1867, the plaintiff was bound to show that the annual report for that year was not filed. (M. L. Ins. Co. v. Dake, 87 N. Y. 257; W. A. Co. v. Barlow, 68 id. 34; Chase v. Lord, 77 id. 1.) It was an indispensable part of the plaintiff's case that he should prove affirmatively that the defendant was a trustee in the month of January, 1867, when he claims that the annual report was not filed. (W. A. Co. v. Barlow, 68 N. Y. 34; Bruce v. Platt, 80 id. 379; Van Amburgh v. Baker, 81 id. 46; P., etc., Co. v. Hotchkiss, 82 id. 471; Reed SICKELS-VOL. LXXIV. 16

Statement of case.

v. Keese, 60 id. 616; Deming v. Pulestin, 55 id. 655; Bough ton v. Ctis, 21 id. 261.) The bonds in suit did not fall within the class of debts for which trustees were made liable by the statute. (Nimmons v. Hennion, 2 Sweeney, 633; Oviatt v. Hughes, 41 Barb. 541; Jones v. Barlow, 62 N. Y. 203; Duckworth v. Roach, 81 id: 49; Haight . Naylor 5 Daly 219; Vincent v. Sands, 1 J. & S. 511; Victory Webb Co. v. Beecher, 26 Hun, 48; S. P. T. Church v. Vanderbilt, 98 N. Y. 170.) The section of the statute upon which the plaintiff's cause of action depended was repealed in 1875; and as no rights were reserved by the repealing act, except in actions then pending, his claim for this penalty fell with it. (V. W. Co. v. Beecher, 26 Hun, 48; 97 N. Y. 651; Knox v. Baldwin, 80 id. 610; Me Master v. State, 103 N. Y. 547, 551; United States v. Heath, 3 Cranch. 399; Sanford v. Bennett, 24 N. Y. 20; Hackley v. Sprague, 10 Wend. 113; Dash v. Van Kleeck, 7 Johns. 477; Bonnell v. Griswold, 80 N. Y. 128; S. P. M. Bk. v. Bliss, 35 id. 412; W. A. Co. v. Barlow, 63 id. 62; 68 id. 34; Wiles v. Suydam, 64 id. 173; Easterly v. Barber, 65 id. 252; Ely v. Holton, 15 id. 595; Moore v. Mausert, 49 id. 332.) If there was evidence tracing these bonds through the hands of trustees of the company, and the plaintiff acquired them without paying value, he had no better title than these trus tees had, and they, being themselves in default, as much as the defendant, could not recover against him, and, therefore, the plaintiff could not. (Know v. Baldwin, 80 N. Y. 610; Easterly v. Barber, 65 id. 252.) It was palpable error to instruct the jury that they could not bring in a verdict for a smaller amount than $24,970, the principal of the eleven bonds, with interest from October, 1868. (Stokes v. Stickney, 96 N. Y. 323, 326; Brackett v. Griswold, 103 id. 425, 427; Wehle v. Haviland, 42 How. Pr. 399, 410; Black v. C., etc., R. Co., 45 Barb. 40, 43; Richmond v. Bronson, 5 Den. 55; Lakeman v. Grinnell, 5 Bosw. 625; Thomas v. Wied, 14 Johns. 355; Hutchinson v. Brand, 6 How. Pr. 73, 77; Renick v. Orser, 4 Bosw. 384, 390; Littlefield v. Brown, 1 Wend. 398, 401.) No special motion to dismiss the appeal is neces