The New York herald., 1878-12-19
THE COURTS.
Merchants TO Be Protected Against
Fraudulent Purchasers.
WITHOUT HUSBAND OR SUPPORT.
Accident to Doctor and His Estimate Of
Professional Losses.

A decision of no little Importance to the legal pro
fession. but specially so to the mercantile commu-
ny has just been rendered by the Court Of Appeals
in the of Gustavus Abbott, the Boston merchant
who was recently convicted in the General Sessions
of false preences and sentenced to State Prison for
three years The Court afirms the conviction in the
Court tclow and in doing settles interesting
questions Of law. The complainant against Abbott
was L. d. Blake, merchant of Worth street, who
claimed to have sold him goods upon credit, out OF
which he was defraudcd Abbott representing at the
time that he solvent, whereas in fact lie in
solvent and had been for some time previous to the
purchase Mr. William +. Kintzing counsel for Abb
bott presented the to the Court of Appeals and
asked that trial be ordered. contending there
were errors committed upon the trial. District At
torney Phelps looked after the interests of the people,
The opinion of the Court delivered by Mr.. JUS
tice Earl and in consequence of its importance is
given in full below
The prisoner convicted in the Court of General
Sessions, in the city of New York. before the Re-
corler for obtaining goods of one Blake i'll that city
alleged in the Indictment that he had in his
business an unimpared capital OF s3ooo9' and tnst
sufficient evidence that these pretences were made,
and that they false and that by means OF them
he obtained the goods he utterly and hopeessly
insolvent, and that in little more than two months
thereafter he was put into bankruptcy. The falsity
Of the pretences shown mainly by the schedules
of his assets and liabilities made by the
prisoner himself in the bankruptcy proceedings.
They were like any other oral written declarations
OF the prisoner, competent for the purpose for
which they were used. The Recorder charged the
Jury that before they could convict they must be
satisfied tnat Blake was induced by the false pre-.
tences to part with the goods, and there sufficient
evidence to authorize the jury to find that he did 50
part with the goods He also charged the jury that
II they believed the representations were not such as
to mislcad a person of ordinary business capacity
they must acquit the prisoner, and there was evil
dence for the jury that the representations Of
such character. The prisoners counsel claims that
because the prisoner represented that ne mad ada CAPT
more than s35,O00 there was no repre-
sentation that he was solvent, and that
deceived But the fair import of the representation
that he had capital Of 100000 over and above
his liabilities; that he worth that 1t was
at least for the jury to say if that not the pur
port of the representation and what he meant Blake
should understand. The further claim is made that
as the prisoner put into bankruptcy within three
months from the time he obtained the goods, he was
punishable under the laws of the United States
United States Revised Statutes section 5l32 which
provide that 'who within three months next before
the commencement of proceedings i'll bankruptcy
under the false color and pretence OF carry
ing on business and dealing in the ordinary
course OF trade, obtains on credit from any
person any goods chattes with intent to detraud
shall be punishable by Imprisonment for not more
than three years and that therefore he could not be
punished for this offence under the State law That
law provides that any person who, with intent to
cheat deiraud another, shall designedy by color
of any false token writing or by any other false
prctence, ..obtain from any person any money, per-
sona property valuable thing shall, upon convic
ton, be punished 1t will be seen that the scope or
the two statutes is widely different. and that they
stand together Upon the allegations contained IN this
indictment the prisoner could not have been indicted
and punished under the United States law But even
il the United States law had embraced in its terms
precisely the offence charged in this indictment it is
not believed that it would have nuilihcd super
seeded the State law. As said by Mr.. Justice Daniel,
in Fox the state OF Ohio Is How u s.. 41O-434),
1.-THE punishment of y cheat or msdemeanor prac-
tised within the State and against those whom she
is bound to protect is peculiarly and appropriately
within her functions and duties, and it is difficult to
Imagine an interference by the general government
with these duties and functions which would be
regular or justifabe." (Sce also Commonwealth VS..
Walker. 10s Mass., 3OoD Therefore, finding error
IN the record. the judgment must be affirmed
Abbott is at present confined at Sing Sing state
Prison. where he will out his sentence unless
pardoned by the Governor.
SEPARATION OF HUSBAND AND WIFE.
suit brought in the Court Of Common Pleas by
Divide Dupre. trustee for Clara Rer against Philip
Rein, and in which decision rendered yesterday
by Judge Larremore, presents some curious and in
teresting complications. 1t seems, from the aver
ments in the complaints, that the defendant, Rein,
and his wife Clara Rein, the 21st of September,
1874 entered into articles of separation whereby the
defendant agreed with his wife and Duprc. as her
trustee that his wife and himself should live separate,
It being also further stipulated that the defendant
should pay to the plaintiff such trustee s25 per
week for the maintenance of his wife. In con-
sideration of this the trustee covcnanted to bear
the defendant harmless from all debts of his wife.
Each of the parties bound by mutual
only three weekly instalments have been paid. aud
that there is due to him. trustee. the of
$685. tor which sum, with interest lie brought this
suit. The defendant demurred to the complaint
the ground of defect of parties plaintiff, it being
claimed that the wife, MS the real party in interest
should be joined. The second ground Of demurrer
put ut issue the validity of the agreement as being
against public policy and the suicicncy Of the ale
cations in the complaint. Judge Larremore. in his
decision oyerrulcs the first ground holding that the
contract with plaintiff for the benefit of another
and constituted him trustee of express trust:
that he alone would be liable to the husband for the
wfe's breach of covenants, and that the action is
properly brought ia her name He holds, further.
that ''the courts have recognized
countenanced any agreement between husband and
wife that seeks independent of the statute. to effect
practical dissolution Of the marriage relation. and
that the obligation of the husband 10 support and
the trustee to indemnify as provided in this agree
ment has been repeatedly upheld by express judicial
sanction when there has been present and actual
separation" Judge Larrcmoro then proceeds to cite
numerous English and American authorities in sup
port Of this proposition and i'll concluding his
marks on this question says:-"From the cited
the conclusion follows that in articles of separation
between husband and wife through the intervention
Of trustee the covenant the part of the husband
to pay stipulated sum for her support
husband from liability for her debts are not not
illegal contrary to public policy" In discuss
ing the remaining question as to the suifciency of
the allegations of the complaint, Judge Iarremore
says:-"Tho plaintiff has treated the agreement in
question instrument for the payment OF money
only. Upon this point think he has misapprc-
hended the spirit aud intention Of the statute The
contract on the part OF the husband to pay for the
support of his wife enyironcd by conditions pre-
rencnt concurrent which constituted the
consideration Of the contract To set forth
IN agreement OF this character ~ crtenso
and declare breach of IL for failure to pay,
"a not good pleading. IL does not appear
that the contemplated separation ever took place.
Az the law only tolcrates such an agreement when it
be enforced by third person acting III behalf of
the wife, all facts by way of nduccment should be
pleaded to enable the Court TO decide whether not
prima facie IL presented Upon this branch of
the demurrer the defendant must prevail with leave
to plaintiff to amend his complaint on payment of
costs. Upon the other issues of the case the demur
rer Is overruled with leave to the defendant to answer
on pay ynicnt of costs.'
DIR. MOTIFS ACCIDENT SUIT.