The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-24
Supreme Court-Gencral form.
Continued from Sundays Horaidt

Supreme Court General Torn.
Continued from Sundays Heratd1 f
OPINION ON AN APPEAL FROM ORDER FOR ATTACH
Beck and anoit.r c,. Rybaek aud ssepAani-i
Mitchell, 1.-The plaintiffs had delivered the bills
OF iading (received by them before this action
hroughD before they had any notice Of any claim
goods were then in the public store house and MOI
In their control The goods had been sold aud pro
baby delivered to Ryback BY the FORMER owners Of
them, nnt 40 they alsae with an intent on Rs
stances it might be that the plaiL ti had no ground
to Dle bill Of interpleader, as they could not be
Responsible TO the adverse claimants for anything
which they had before done in ignorance OF their
claims al In consequence of the evidence OF title
which these claimants had enabled Ryback to pro.
by the sale and delivery to him. and they could
not be liable for any thing they should afterwards
But this objection II correct to Ryback, by tits
conserving that q receiver SHOULD be appointed who
sboala SCI the goods, and By an order being enter
ate for him u object the validity Of the Injunction
restraining him from interfering with those goods,
for the reason that the complaint did not show
sigree for him after that date would be in like
ner estcpped from raising that objection, ut least
motion relating 70 the Injunction anything done
under or in relation Of It. Stephan Is brought in
by an amended complaint, which should have been
and must be treated as supplemental complaint,
on the ale CATION that since the suit was commenced
he became a. signec or purchaser for Ryback with
out any valuable consideration. II this be true he
is equally estopped. The new complaint shows that
another set Of goods had come TO The paintis pos
session and were still in their possession, toge-
Their with the bills Of lsding under like circnm-
stances. As to these goois the defendants were in
danger from adverse claims. The obje ,,ion is made
that they received the goods as the agents of Ry-
back merely and therefore cannot canse him to In
terplead. But in fact they did MT receive them
hem him-they received them from one Mnecrg
who also sent them the bills Of lading to tacir
order, and who may be the agent Of the I'D.
verse claimants as much as Of Ryback. A
tenant cannot file bill Of interpleader against
bis lessor and claiming adversely to the lessor;
but he may against persons claiming adversely to
each other under the lessor The plaintiffs here recog
nse the title as once in The vendors Of the goods and
those vendors and Ry back claim the goods id
verseiy TO each other. The plaintiffs obtained the
possession, so far as they know a. much through
the vendors a. through Ryback. They never 70
te Sysr IRON e only aaa an
issue against Ryback for violating the Injunction a.
to the goods first shipped, in selling and delivering
them TO Stephani, ha been granted. This Is merely
whether he'll done the act charged not II Ia for
attachment aud Ia 10 be bailabe In 81 900, and Ia
not for . commitment 1.-The has sold the goods to
Custom House, he violated the injunction, and the
attachment was proper; and on that question ne
cannot open the inquiry, whether the injunction
| was properly granted. Whether in imposing foo
for the contempt that may not be considered it Is
| not now proper to decide. But, a. before shown,
10th iDjnDctions we're primo fnc'e good, and are
therefore, TO be enforced until cot aside Wuhter
Iadng on the I'D Of January fve days after tho in.
junc ton was served, and that he passed them to
StepbaDi o. part OF show sale. Cerrona and Sit
spike Of the goods as his in the possession Of Step
bani, and offered to dispose Of them to them, and
caused the goods to be brought to their store 70 be
sold on commission for him; that 6tcphani then
nc l,,rtx hat v,o kn~
per'y, Snd is support4 by his wife, who Is music
teacher; and Stephani admitted, they say, that
the transfer to him wasa pretcnce Mr. Tobias fully
cSns tLs Il reply e ts naShk and Sc
ctmber last, and paid fer them, bnt they do not
FAY what he psid and their subsequent admissions,
II really mace, show that the sale and the payment
were mere pretences. Ryback does not deny his
aiding in the removal Of the goods after the in
junction was served. For that he is accountable.
Ryback and Stephani also soemnly allege that the
statements made by Wuhterman, CeronDs, Sitter.
field, Losee and Tobias, 80 far as these statements
relate TO them respectively, arc untrue They show
by other witnesses that an admission said to have
been made by r.. that he had left money with Mrs.
Earle and got ii back, for her TO give to s., that s.
might pass IL to him, Is untrue 40 far at leest az
relates to RS giving the money 10 Mrs. Earle or
getting It from her. But they produce no evidence
except TIER own that any bill Of sale or money
passed between item before the Sd of January; or
that the bills Of ladng were in SIS hands before
that time, thst before that he exercised any con-
troll over the goods. Dnt these contradictions, dis
graceful they must be to Of the parties only
show that the plaintiffs should be fully protected
they not to BE- put 70 the hazard Of determining
which OF these parties IL, or who is not gailty OF
perjury. The cider appealed from should be af-
frned with costs 30 that the attachment will Issue
and the ipjuneions continue In force. See further,
tie opinion OF Judge Clarke az Special Term.
INpopTAsr 70 BANKERS.
Ta'n,an Rcchtsier city Baak.-Mitchell, J.
The cefepdaEts' points state that they may con
redn that If the hood sri mortgage mentio aea in this
tsec bad been assgned ID god iait1 by Mumford 70
the Rochester CRY Bank, as security for the debt
which he owed 70 the hank the bank might (~th
the eoaaent VI Mum.ord) lave assigned the bend
cid mortgage 10 another, and gu1raLtee1 tho pay
rent OF The bond and mortgage. Bat that the dis
tin, tlon manifest between the right of she bank
to sraraL.fe chc-es IN action belonging 20 il aud lts
right 10 guarantee those belonging TO another. The
concession II right, and a hank may certainly as
sj9n ~ convey any property held by ", and may Gu
tee irto Tho common covenants OF guarantee or wag
lanfy or making snth assignment or oonyeyaDse.
lhs Tsnt Is matter OF suostst ce aad not or forD
as q formal contrlyaucc complying in al outward
ects with the Requirements Of tho rule would DC
nulliiy i; Il was in fact nAre contl vanee, and
ile stbstance o. tfs transaction we're contrary 20
the ruie; IL the case before the court Is in sub
stance within the rule and only needsa formality 10
lIing il IN al res ects within It. the omission OF the
oin should be disregardcd, ana he substance atone
looked to; fos II is 10. ouesto whether the bank
has used the requisite forms not but whether had
any power or capacity 10 DO The tbiDg which Il has
done in any possible form; whether the bank had
any powers, functions or franchises to guaranty IN
such CAGE not whether Il aad used al the requisite
firms which would clearly show that IL he'd such
right. This is rot liks the case, when that which
paiakcs q the char 2Cter Of form is made necessary
by statute; tbcn the seeming form becomes essen
iai end matter 81 snbs.a5cc BY the effect OF the sta
tut: az when buk = forbidden to issue crculatr
ing notes unless pas ablo deuiand or at ,ts plscc
oftutiness. II the hank has the power o. capacity
10 give its guaranty uBdsr tho Circumstances Of this
far a d0iuy
Il. The counsel for the paint accordingly iusi,iS
that the transactn in question was, in effect
as wei % in form, a guaranty by the bank
OF securities ID which It had an interest This
fsquircs an examination OF the arrangements
made between the parties os shown BY the Complaint
On the 1st Of August 1885 Mpmford was iuscbfcl 70
The bsnk in large sum Of money, aud tho bank was
dtslioGs Of obtaining payment; Mumfcrd, in order