The New York herald., 1869-05-07
COURT os cuMkoS plsas-TaIAt TERM.
Extraordinary Case Of Fraud and Dcccptiop
by an AstGrncy--A Judicial Opinion Of 81
Member of the Bar-A Hard Case.
Rar,r Ind nat

Extraordinary Case Of Fraud and Deccp,lop
by an Asterncy--A Judicial Opinion Of 81
Member of tine Bar-A Hard Case.
Before Judge Daily.
Frances Wavlta rs. Jo,tls LiUingstoa, P7ti,p See
oOlG ana FrGiacis HQDmda.--The developments
upon the trial Of this case which has occupied this
court for over two days and which was concluded
yesterday are luckily among the rarities in the
nals of the New York bar. The action was brought
against John Livingston as administrator Of the last
viii and testament Of John waylan, deceased, and
against the other defendants as his sureties on his
bond as administrator. Mr.. John Waylan, formerly
dentist, Of this city, died some years ago. leaving
= win in which this plaintiff lhis widow was sole
legatee. Sue was IN feeble health, and Mr. John
Livingston was her counsel He persuaded Mrs:
Waylan his chent, TO renounce the executorship OF
the will and TO permit him to administer upon her
deceased husbands estate and to be guardian OF her
children. She complied with his suggestion ana he
was appointed administrator, giving two suretics in
the sum Of 1000 each. After the proper time had
elapsed to administer the estate Mrs. waylan APP
piled to Livingston to pay over to her the residue
which amounted to between $4,000 and $1,000
r sss paying all put
weary Of waiting, she found upon investigation
that the sureties ne had given were utterly worth
1885, applied to the Surrogate to remove Livingston,
both on account of fraud In obtaining from her q
and also, under the statute, upon the ground that
his sureties were insolvent. Mr.. Livingston ap-
U60TeO
tons Of fraud; but the sureties, upon being exam
ned under oath, proved to be utterly worthless and
tnereupon Livingston consented to the entry OF an
order that he give sureties within five days,
that his authority administrator be revoked. Mrs.
waylan's counsel being satisfied that that was the
the administration being denied by Livingston, IL
was doubtful whether he could be removed ON tnat
Protection consented to abandon the charges cf
fraud and that the order be entered. Mr. Living
ston thereupon procured and filed new bond as
nv fha
ths action In the penalty OF $4,000 each. Subse-
quently after tedious protraction before the Sur
rOgate, decree was made by the Surrogate In Sep
tember, 1857, directing Livingston to pay certain
debts, allowing hlm commission &C., and ordering
s 70 Rss om This q the e.
court BY which all proceedings against him were
In the latter part Of April 1862, his appeal was ais
missed for want Of prosecution, with costs, and q
few days afterwards after personal demand for
tue payment under the decree upon Livingston, Mrs.
waylan's counsel applied to the Surrogate for an
attachment against Livingston for not paying over
che money. This the Surrogate refused upon the
ground tnat an attachment was a harsh remedy
and that ME- waylan must nrst issue an execution
upon the decree against Livingston, and II that was
returned unsatsned she must sue the sureties; and
II she then did not get her money he would issue a
attachment, and not until such steps had been
cree against livingston upon which the Sheriff
realized the OF s14 II, and that was the total.
Execution was, Of course returned unsatlsned on
notified OF Livngston's default, and requested TO
pay, which they failed " do and early in september
this action Was commenced against them on the
The defendants Get mp through their counsel as a
names 10 the bond without telling them what It was
wanted them 70 sign their names; that Livingston
was their landlord, and could favorthem dsfavor
them be saw nt and TO oblige him ano insure his
yil they sighed the bond without any knowledge OF
Scd that there was no seal on the bond opposite his
name, ana the defence claimed on this point that
Tnsy for,s"r claimed sha, the psns or her sstor
ncy were guilty OF fraud ana negligence IN conceal.
ing from the oondsmen the previous amount OF Mr..
hlm ani also that they had consprsd with Living.
ston procuring the signatures Of The sureties upon
che b0nds IN order TO secure the paintIrs debt
Judge Dsiy ruled that the fraud Of Mr.. Livingston
n procuring the signature could not anect the plain.
tan; that there wss not the slightest evidence TO sus
% SHOW that the piaintin was In any way privy to
or knowing Of thesc representations; that neither
duty 70 sscs % out me sare,ies ana commitments to
them the previous frauds VI Livingston; that such
sios ana anhesrd Of; that a. to the AN King OF the
seal afer the bondsnen had signed, n such were the
fact. a,a nc, % vi,,a.e ,s the the bond n, for n two
the sureues could not he allowed 10 sci up n de-
creditor, for whose benent m was given had seen ~
10 object. The objection might have been taken by
% Ss na mayns BEEN pu, upon the sooa b, s
pIsiniIn. or with her knowledge ana consent and,
being the act Of stranger as 70 hs. DID no, visse
the bond: aud thirdly that the addition Of the seal
vas In no event material alteration, because the
hand would have been good without IT, as before
ueAted, and the seal was a supernuty.
IN commenting upon the case Judge DAILY said "
vas unprecedented In enormlty IN hs experience on
the bench or 81 the bar. II was grea hardship
tnas those DESCENDANTS who were honest,
nralehtforward, though, perhaps. rather too
uneuepecung men. should sufIef through the
devices OF This man Livingston. whom the coun.
sei nad very properly denonlnsted "a scoundre.n
out " was the defendants' misfortune. lie was glad
70 say however, that the case VAS without pr,oe.
dent o. me New YORK bar, 40 far ~ he Knew and he
considered u an honor 20 the profession that there
was but this one case OF It's kind. Iiyipgstop was
aiagrace 70 himself 70 his country. 20 his race aud
Tne uourt directed the jury TO ana ysrdc, for the
sli amount claimed te6oo w. inci iaslve AZ lnsers~x