New-York daily tribune., 1858-10-01
LAW INl''ELLIGENCE

The following Is the last opinion Judge puer wroee
1t is u great Importance to the business esmmaaisv
and the e ,s proles,on It was delivered i. the early
par. Of July last
Frnncl. II s,er. Re.poOdeu,, ,s' sidnsy oss, Ns-s
IL lockwood. sHd Le Grand lockwood APIrnsh"'
Du,R. C.J-By RE Conri-Ths comes be-
fore m upon Al appeal from Judgment Al >p~ce
Term IN favor Of the plaintiff FOR $oo with in'eres~
and costs ... ...... f.
The ease WAS tried by the Judge who heard il With.
out jury, ont Il does Ao appear that was 80 htes
by the consent Of the parties.
In order that the conclusions 10 which we havs
come may be properly understood, il viii be neces-
sary to ave brief statement of the p-adings and
al those portions Z" the findings snd decision Ut thc
Judge and Of the evidence upon the trial that have
IA bearing upon the Questions upon which alone Vsx
decsion wiu turn.
The complaint alleges that upcn the ilth day d
January 1885, the plaintiff gave 10 she Defendants,
who are partners and stockUroAers an order TO pur
chse ior hun hundred shares OF the capital stock
OF the Accessory Transit Company AM at the sasne
time deposited With them security tor his own
performance Of the contract thirtyhve shares OF the
stock oi the Sixt-avenue Railroad Company, WITH n
power Of attorney to transfer the same that shortly
the reafter the defendants delivered 10 the psnh 1--WE
memoranda showing that they had purchased on I'M
sccout fro difrsru ersous shares o r tssi
q; the Ncarssua Acc.ssory Ira Company the stok -
'S .ars. were trabsierra or syesedt the puia ,h
subsequy defendants gave BIN notc. ta, they sassla
dur, dated .h dsy of April 1855 showing that they had o,A
thr same the pee Of thirteen and taree quarters per ees
bat that he he plaintiff never Transferred OF delivered s
rbas 10 any rerson tina; tie lin day OF Ap 1855 sh~
rendered 70 the plaintiff az accoant o. winch
neaed but that money had oseu Paa 20 os a' 40
IN. Sxssenue Railroad stock ever oeh deisei.' 20 n
In The scooent 80 iendersd 3, the S,oIs., Use S
charged with f50s. the prce ot TIE Nesi sisus 'ca
Sg7 - iueYo. thereon and 20 for couisslon ana ~
so IN .-SI Os s.J ~,h rs a. thr proceed. 4
the sale snd commission o thy NiesIssua transit
road Company The Aggregate s -s! 20 thus leaving AaA
staring Ss5 a. balance due 70 me Psr,n % and
the hearsus stock in the acoun, rendered were not % -
ti.,ps loan va. also fictitious. and closed dsu.aA
Of Judgment by the panth that the defendant should rss
Avenue Railroad Company should pay him bslaass
that might be found due TO h upon the transactions oe'"e
Tie answer Of the defendants GeuL aud A. Lockwood -
that the order fox the purchase Of the harss OF ths 4
wood aud the pot with them Of thryhv shares -
security Of the Sixth Avenue Railroad Ssmps, and 49, ~
asus and he BY the firm in their svu
.sres 80 held BY them ths, s
the Nicaragua aud of the Sixth Avenue ksioed Cen
msdr on hi, account and that the account
all respects correct The defendant La Grsnd Lock~ssa
answered separately and denied all the allegations In The esoa
What and In JUDGMENT, the only isss
clearly proved upon the trial. that the two hunarsa
shares Of Nicsius .tOcs we're perSh.ed e the deterds.
the price mentioned IN the account whsae
they rendered tina, they advanced the funds for hss
pose That they s:a,sd the & ..SS. BY s,a I =" Ss
ninety days from tho date Of the purchase and hs BY 80 ds
ing the credit which was Originally ssc nos 4 -
the eud OF the ninety dsys they sold the sost or ns pce
Of the al. and il result And ths, with kno-ieds be
himself ordered the sale OF the thirty hse shares OF the sxs
and 6na, that asr he Of defendants had boss
rendered him. and with che sccoun, I. n. hands he ex
press words admitted that the charges which wess
correct with tho single exception Of the charge OF $780, -
All ~, a, abovs stated ar" .ntay found by the Juds-
but finds these fact. in addition That on the 18Th day q
on the books Ncsasus Transit Company but that d1
and s times from the 9Th day IT January the ith day
.a"s to 200 share. With other srtir. from hsS
had none, upon the security the stock and red-s
March average price Of tho stock S per cent
The learned Judge states the law applicable TO the.e fs
be that the defendants bound kept In theL
ugon the books OF the or TO have within she
The smonn Of 100 shares and that the s, stsoi
deposited security for moneys borrowed was not such pos
. conclusions of law that the charge made BY the deendsn,s
hs Of per cent for carrying the stock for the TWO periods
thirty days ser the expiration Of the first justified ~
usage brokers binding the plaintiff and that the Paaaa
bound by his admission that the account of the d"ad
ants correct oaccp, charge Of s5o there being
evidence that he knew the Of the stock having S,
parted with The Judgment which The earprd Judge finally
t do eoyer Of the defendants of Sl s5l 5j being Tn
of 75, wh interest from the 18Th day oil ssrol
1856, together with their costs 20 BE- adjusted.
The 7 ia the difference between the market vass
OF til; shares the 18th day Of March and TIM sum tes
which the proceeds Of their SALE the plaintiff wa credes
the rendered him by The defendants on the th day
Of April The sSsTeI ,herss;e re- A' I % IseS. @
plaintiff and ina, The dendant BY parting VITA I, po.'.os
on 3 Is, Sy S 'as s ss 70 'ne own
The counsel or the defendants filed steen exceptions to ss
Shall notice a. they distinctly the onar.tion
propose consider and determine
The first Of these exceptions is 20 80 much OF the decoa
the declares that the plaintiff bound by his Sd
mission that the account was correct except rs TO the tio
action could be maintained upon the pleading for the cea
version by the defendants OF the Nioaraza stock 20 their ov.
thaa that
order in which shal consider them are; .,.
First Whether considering the nature Il the action and
the relief sought within the power and indeed the Js
risdcon of this Court order he Judgment appealed frsai
Second Wh.ther does appear from the evidence ths
all the proceedings Of the defendants IN reference to the sa
Nicaragua aud of the rarosd stock 30 rly
and SANCTIONED by the plaintiff asto preclude him fron
d,ps aeir legality aud either of these question. must %
determined IN favor Of the defendants, plain that the jsds
meut appealed from must b. reversed and new tila % %
dered fhe only cause Of b,on alleged IN ne complain, m w. sn
count Of the defendants WIRE pendsd and nettou sna '
legations the plaintiff would b. eut,lednlney the return
and transfer him the thirty railroad share. which %
deposited with the defendants collateral security TIN
cause OF action Tor which he was a 'h 10
plaintiff the lawful owner Of the Nsagua shares %
had be- purchased and that 'he defendant.
converted their II IA impossible to s~y
that the difference between these causes Of action can BE- re-
10 gard variance which under possible
construction Of The provisions Of the Code might D" cured ~
amendment II evident that the Of ston Tor which tho
pau @ ~ " a. 80, .b, s,s,ss o b, Soa,ai,n, Code Ss.r
l7 bur which directly conrsdict'd al the allegation. inc
complaint npou whi,h the demsnd for relief vas oanded
that The Nicssgus shares ordered b the pssus
were purhasrd By the defendants The Judge cdr
judgment necessarily implies. That to-
by them IN MS order The complaint denies thr
any advanced by the defendants on the plaintiffs
account The Judge decided aud his fsmei Implies ina
they advanced the whole which they ohsrs IS the pa
as. money stock The complaint tens that loans
were re sotisted defendants The plaintiff The Juts,
de. dcd such Icons negotiated and this also his
zmen implies since otherwi.e the 80 which be slovod
for negotiating such ssas would have been
added the for which udgmen, rendered. The mans
fest result is thst The pnth w:- sdud;ed 70 Dr. en..es
20 money that be claimed and 20 BE- enttied
upon grounds that IN his complaint he denied 10 b. true aA
upon the ta attempted dispros-. The only issues E~s
the pleaduss were, whether tho purchase and sale
Nicaragua and ~h~thrr tae