Abraham Clark Freeman.

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way voluntarily submitted themselves to its jurisdiction, their
claim was not affected by the discharge granted to the defendants
by the insolvency court.

But it is contended that the plaintiffs, by bringing their action
in this court, have voluntarily submitted themselves to the juris-
diction, and are bound from enforcing their claim, which is cov-
ered by the terms of the discharge granted to the defendants
under the involvent law of this state. The question presented
is, whether a discharge in insolvency granted by an insolvent
court of this state to one of its citizens is a bar to an action
broucrht by a citizen of another state in the courts of this state.
Insolvency proceedings involve a judicial investigation and par-
take of the nature of judicial proceedings, and a discharge in in-
solvency is valid and operative only as to persons and claims over
which the insolvency court has jurisdiction. As the insolvency
courl of this state had no jurisdiction over the plaintiffs
as citizens of New York, the discharge granted to the
defendnnts was inn; "n.tivc as to the plaintiffs, and cannot

Digitized by


624 Lanqlbt v. Fabminqton. [N. H.

be pleaded as a discharge of their claim; Eastman y. Dearborn^
63 N. H. 364. As to the plaintifiFs and their debt against the
defendants^ it is as though there had been no insolvency pro-
ceedings or certificate of discharge granted to the defendants.
The discharge is no defense to the plaintiffs' claim. The plain-
tiffs' debt not being extinguished^ they have an equal right to
enforce the payment of it by suit in the courts of this state
with other citizens having claims to be enforced. It is no reason
for denying the plaintiffs' access to the courts of the state to en-
force a valid claim against the defendants^ in no way affecting
the rights of other citizens^ that the defendants have obtained a
certificate of discharge from an insolvency court having no juris-
diction over the plaintiffs. This view is supported by the de-
cisions of other courts where the question has been considered:
Guernsey v. Wood, 130 Mass. 603; Kelley v. Drury, 9 Allen, 27;
Hills V. Carlton, 74 Me. 156; Bedell v. Scruton, 54 Vt. 493;
Anderson v. Wheeler, 25 Conn. 603; Main v. Messner, 17 Or. 78;
Phoenix Nat. Bank v. Batcheller, 161 Mass. 689.
Exceptions overruled.

Smith, J., did not sit; the others concurred.

ZEN OF ANOTHER STATE.— A nonresident creditor is not barred
by a discharge in insolvency granted here, unless he has oome in and
flubmitted himself to the jurisdiction of the court: Pattee ▼• Paige« 168
Mass. 352; 47 Am. St. Bep. 459, and note.

Langlby V. Farmington,

(66 NXW HA1CF8RIRS, 431.]

^ven a life estate, by will, to enjoy the property in specie, and is also
appointed executor, he is entitled to the possession of the property
without giving a bond to the remainderman or anyone else to account
for it.

EXECUTOR named in a will, who, without appointment of any
"Court or without giving bond, has administered the estate according to
the terras of the will, is a defense to an action for the same demand,
brought by an administrator subsequently appointed for the same

Assumpsit on notes payable to John H. Langley, or order. Said

Langley died December 21, 1875, possessed of such notes and
leaving a will, of which he named his wife executrix, and, after
making specific legacies, bequeathed to her the residue of his

Digitized by


June, 1891. J Langley v. Farmington. 625

•estate under conditions outlined in the opinion of the court.
The will was proved in January, 1876, and without being ap-
pointed executrix, Mrs. Langley took possession of the testatoPs
estate, including the notes, and paid his debts and legacies. The
makers of the notes paid her the full amount thereof in May,
1878. She afterwards married and died, and the plaintiff waa
appointed administrator of the estate of said John H. Langley.
He then brought this suit against the makers of said notes, who
obtained judgment, and the administrator excepted.

J. W. Towle and J. S. H. Frink, for the plaintiff.

O. E. Cochrane, J. Kivel, and T. Cogswell, for the defendants.

*•* CHASE, J. It is unnecessary to determine whether the
widow, under the residuary clause, took an absolute estate, a«
claimed by the defendants, or an estate for life enlarged by the
addition of a right or power to use and dispose of the principal as
she saw fit: Burleigh v. Clough, 52 N. H. 267; 13 Am. Bep. 23;
Kimball v. Bible Soc, 66 N. H. 139, 151. If her interest was
only an enlarged life estate (which is the smallest that can be
clahned in her behalf), the testator intended that her possession
of the property should immediately succeed his and be of the
property in specie, and that she should have the control, use, and
disposal of it during her life. The facts that his bequest of the
residue to her is accompanied by a habendum clause which pro-
vided that she was to have and to hold it to her use and behoof
forever; that he gave it to her without the intervention of a trus-
tee, and without imposing on her an obligation to give a bond to
protect those in remainder, if any; that he made her residuary
legatee and executrix, so that a bond to pay debts and legacies
might be accepted from her instead of one to return an inventory
(Qen. Laws, c. 195, sees. 12, 13; Emery v. Judge of Probate, 7 N.
H. 142); that she was to be amply supported and maintained out
of the estate, and was to use and dispose of it as she saw fit; and
that the bequest ^** over is of the remainder of said estate, "if
any*' (Harris v. Knapp, 21 Pick. 412), all disclose an intention to
give her the possession, and a right to use and manage the prop-
erty with a large share of the freedom and independence which
he had enjoyed.

While the ordinary role is, that if a testator makes a general
bequest of all his property, or the residue, to one for life with
remainder over, and Uie property consists in part of perishable
personal property, the perishable property should be converted
by the executor into permanent securities and the incoma odIj be

JaU ST. BV., VOL. XLlX.-«

Digitized by VnOOQ IC

626 Lanqley 9. Farmingtoh. [N. H»

paid to the life tenant, the role is not applied in a case like this^
where the testator intended the life tenant should enjoy the prop-
erty in specie: Healey v. Toppan, 45 N. H. 243, 260; 86 Am. Dec,
159, and authorities cited, particularly Morgan y. Morgan, 14
Beav. 72; 7 Eng. L. & Eq. 216. In such case the life tenant i*
entitled to the possession without giving a bond to the re-
mainderman, the same as he would be if the property were spe-
cifically bequeathed to him: Healey v. Toppan, 46 N. H. 243;
86 Am. Dec. 159; Weeks v. Weeks, 5 K H. 326; Marston v.
Carter, 12 N. H. 159, 163; French v. Hatch, 28 N. H. 331, 352;
Weeks v. Jewett, 45 N. H. 540, 543; Burleigh v. Clough, 56 N. H.
267; 13 Am. Eep. 23; McCarty v. Cosgrove, 101 Mass. 124.
Whether Mrs. Langley was absolute owner or only life tenant of
the residue, she was entitled to receive possession of the properly
in specie from the testator's representative without giving a bond
to anyone to account for it.

Although she did not qualify as executrix, she appears to have
fully administered the estate in accordance with the provisions
of the will. She took possession of the property, and paid the
debts and general legacies. If she had given a bond as executrix,
that would not have caused a diflFerent disposition of the prop-
erty, nor secured the performance of additional duties in respect
to it, except the filing of an inventory and the settlement of an
account. The bond would not have protected the remainder-
men against the unauthorized, negligent, or fraudulent use or
disposal of the property while in her possession as life tenant, for
the executrix would not be responsible to the remaindermen for
the preservation of the property after it passed into the possession
of the life tenant: Lynde v. Estabrook, 7 Allen, 68, 72; Weeks v.
Jewett, 45 N. H. 540. If the testatoi^s brothers had an interest
in the residue as remaindermen, their interest could be pro-
tected, whether the executrix's ofiBcial duty to file a bond and in-
ventory was perfonned or not. They could compel her, by ft
suit in equity, to file an inventory of the property in which they
were interested, and thus insure their protection against her mis-
use or misappropriation of it: 2 Kent's Commentaries, 354;
Westcott V. Cady, 5 Johns. Ch. 334; 9 Am. Dec. 306; Langworthy
V. Chad wick, 13 Conn. 42; Homer v. Shelton, 2 Met. 194; Healey
V. Toppan, 45 N. H. 243; 86 Am. Dec. 159.

The testator's estate having been settled, and his property hav-
ing gone to those who were entitled to it, and would have re-
ceived *** it if ail the requirements of the law had been com-
plied with, the settlement cannot be disturbed: Hibbard v. Kent,

Digitized by


Jane, 1891.] Sturtevant v. Abmsby Company. 627

16 N. H. 616; Clarke v. Clay, 31 N. H. 393; George v. Johnflon,
46 N. H. 456; Mercer v. Pike, 68 N. H. 28G. The plaintiff is ad-
ministrator of the estate only in name. No trust now remains for
him to execute. The payment of the notes in-suit by the defend-
ants to Mrs. Langley was, under the circumstances of the case,
payment as against all parties beneficially interested in the estate,
and therefore as against the plaintiff: Clark v. Clark, 62 N. H.
267, 272. The proceeds of the notes, together with the other
property of the testator, went into the possession of Mrs. Lang-
ley, where they belonged; and if she has not expended the whole
of them, as she was authorized to do by the will, and the testator's
brothers have any interest in the remainder, their remedy is
against her representatives directly, and not against the de-
fendants indirectly through the plaintiff.
Exceptions overruled.

Carpenter, J., did not sit; the others concurred.

A specific bequust of personal property to one person for life, witli re-
mainder over, entitles the tenant to its poHsession and use daring his
lifetime, and the remainderman to the property thereafter, where the
property is of such a nature that it is not consumed but only deterior-
ates or wears out by use; and the tenant is not required to ^ive secur-
ity to the remainderman, but only to file hu inventory for bis benefit:
ueaiey ▼• Tappan, 46 K. H. 243; 86 Am. Dec. 159, and note.

Sturtevant v. Armsby Company*

[M Miw Havfshixs, 667.]

STATES.— An assignment in insolvency made under the law of one
state is not a bar to a subsequent attachment of the insolvent's prop-
erty situated in another state by a citizen thereof, or of a third state.

Bill to enjoin an action at law. On December 31, 1890, one
Hanson, a citizen of Massachusetts, filed a voluntary petition in
insolvency in that state. On January 22, 1891, the plaintiff, a
citizen of that state, was appointed assignee of such insolvent's
estate. The defendants, a corporation organized under the
law of Illinois, afterwards brought suit in New Hampshire against
Hanson for the recovery of a demand provable in insolvency, md
attached certain of his property situated in the latter state.

If. B. Thomas, for the plaintiff.

F. Weeks, for the defendants.

Digitized by


628 Stubtevant v. Abmbbt Compant. [K. E

«» CABPENTER, J. The insolvency proceedinp afford no
objection to the maintenance of the defendant's action against
Hanson; nor, it seems, would they against such a suit in Massa-
chusetts: Morse y. Beed, 13 Met 62; Barker y. Haskell, 9 Cush.
218. In these cases the objection was made by the debtor. The
plaintiff, as assignee, has no interest to prevent the defendantB
from prosecuting their suit to judgment His interest, if any,
lies in the opposite direction. If the defendants obtain judg-
ment, they can prove neither it, nor their original demand against
Hanson's estate: Sampson v. Clark, 2 Gush. 173; Woodbury v.
Perkins, 5 Cush. 86; 51 Am. Dec. 61; Bangs t. Watson, 9 Gray,
211; Hollister v. Abbott, 31 N. H. 442; 64 Am. Dec. 342. On
either ground the bill might properly be dismissed. But the bOl
may be amended. It is not the prosecution of the 8uit» but a
levy on the attached properly, that the plaintiff desires to pre-
vent. He claims a right in the property superior to the de-
fendant's lien. He can properly ask for nothing but due protec-
tion of that right If the defendants cannot obtain judgment,
they cannot levy. But to prevent a levy, it is not necessary to
enjoin them against pursuing their action to judgment They
are not to be enjoined any further than is necessary for the pro-
tection of the plaintiff. The case is considered as if the bill were
so amended as to ask for an injunction against a levy on the prop-
erty attached.

An assignment under the insolvency law of another state is not
permitted to prevail against a subseque/it attachment by a citizen
of this state of the insolvent's property found here: Saunders v.
Williams, 6 K H. 213; Dalton v. Currier, 40 N. H. 237; Dunlap
V. Sogers, 47 N. H. 281; 93 Am. Dec. 433; Perley t. Mason,
64 N. H. 6; Carbee v. Mason, 64 K H. 10. But as against subse-
quent attaching creditors who are citizens of a foreign country,
the assignment prevails: ^^ Sanderson v. Bradford, 10 N. H.
260. The defendants are not foreigners. They are citixens of
Illinois, and as such, when in this jurisdiction, are entitled, under
the fourteenth amendment of the federal constitution, to the
equal protection of our laws: Pembina Hin. Co. v. Pennsylvania,
125 TJ. S. 181; Minneapolis etc. By. v. Beckwith, 129 U. S. 26,
They are now in this jurisdiction. They are here lawfully in
court as suitors, and in that character entiUed to all the rights the
law gives to our own citizens. The amendment ^eans that no per-
son, or daas of persons, shall be denied the same protection of
the laws which is enjoyed by other persons or other clawocn in
the same place and under like drcumstancea^: Miowiiri ▼•


Digitized by



June, 1891.] Stubtevant v. Armsby Compant. 629

101 TJ. S. 2i, 8L 'It opens the courts of the country to everyone
on the same terms for the security of his person and property,
the prevention and redress of wrongs, and the enforcement of
contracts; it assures to everyone the same rules of evidence and
modes of procedure; it allows no impediments to the acquisition
of property and the pursuit of happiness to which all are not sub-
jected; it suffers no other or greater burdens or charges to be laid
upon one than such as are equally borne by others; and in the ad-
ministration of criminal justice it permits no different or greater
punishment to be imposed upon one than such as is prescribed to
all for like offenses. It secures to all persons their civil rights
upon the same terms'*: Field, J., in Ex parte Virginia, 100 U. S.
367, and in Barbier v. Connolly, 113 TJ. S. 31. The same view of
the operation and effect of the amendment is expressed by the
court in Soon Hing v. Crowley, 113 U. S. 703, 709; Yick Wo v.
Hopkins, 118 U. S. 356, 367; Hayes v. Missouri, 120 U. S. 68, 71,
72; Minneapolis etc. Ey. Co. v. Beckwith, 129 TJ. S. 26, 28-31;
Beirs Gap R. R. v. Pennsylvania, 134 U. S. 232, 237, 238; Chi-
cago etc. Ry. Co. v. Minnesota, 134 TJ. S. 418, 458. To deny the
defendants the right, given by law to our own citizens in a like
case, to pursue their suit to judgment, and to apply in satisfaction
of the judgment the property attached, would be depriving them
of the equal protection of the laws. The plaintiff's bill must be
dismissed. The same conclusion, upon a like state of facts,
was reached in Paine v. Lester, 44 Conn. 196, 26 Am. Rep. 442,
and in Hibemia Nat Bank v. Lacombe, 84 K T. 367; 38 Am. Rep.
618. In the latter case the attaching creditor and the insolvent
debtor were citizens of Louisiana. It is not certain that the same
. result would not be reached if the defendants in this case were cit-
izens of Massachusetts; Cunningham v. Butler, 142 Mass. 47; 56
Am. Rep. 657; Cole v. Cunningham, 133 TJ. S. 107; Hibemia Nat
Bank v. Lacombe, 84 N. Y. 367, 386; 38 Am. Rep. 618; Kidder
V. Tufts, 48 N. H. 121; Eddy v. Winchester, 60 N. H. 63.
Bill dismissed.

Smith, J., did not sit; the others concurred.

EIGN— ^EFFECT OF.— An Assignment made by a debtor upon his
own motion, for the benefit of his creditors, under the statute provid-
ine that an insolvent mnv make an assignment for the equal benefit of
all of his creditors, is voluntary and transfers his entire personal prop-
erty wherever situate : Whitman v. Mast, 11 Wash. 318 ; 48 Am. St. Rep.
874, and note. A voluntary assignment in insolvency for the benefit of

Digitized by


630 Wait v. Nashua Armoby Abbociation, [N. H.

erediton, if valid where made, is valid everywhere, unless repugnant to
the law of the place where the property of the insolvent is situated and
detrimental to the rishts of domestic creditors in the latter jurisdiction:
Hayden v. Yale, 45 La. Ann. 362; 40 Am. St. Bep. 232^ and note.

Wait v. Nashua Armory Association.

[86 New Hampshire, 581.]
The president of a corporation has no authority as such, to act at
its agent.

The improper admission in evidence of the by-laws of a corporation,
to show that the president thereof has no authority to act as its agent,
is not ground for setting aside a verdict based on such want of au-

The admission in evidence of what the Jury must have been in*
structed as matter of law if the evidence had been excluded, la not
ground for setting aside the verdict

Assumpsit against a corporation to recover for the services of
the plaintiffs, as architects, in preparing plans and specifications
for a proposed armory. On the trial, plaintiffs took ezceptioiii
to the admission in evidence of certain by-laws of the defendant
corporation, and, after judgment against them, removed the case
to this court.

C. W. Hoitt and Z. S. Arnold, for the plaintiffs.

G. B. French, for the defendants.

^^ BLODGETT, J. The plaintiffs have no gronnd of com-
plaint, for even if the by-laws were improperly admitted for the
purpose of showing that the president had no power to make con-
tracts in behalf of the corporation without the sanction of the
directors, it does not afford suflBcient cause for setting aside the

The evidence for the plaintiffs simply tended to show that they
were employed by the president to prepare plans and specifica-
tions for the proposed armory, and that he assumed to act for the
corporation, but there was no evidence that the corporation in
any way authorized him to procure such plans and specifications,
nor was there any evidence of such authority on his part from any
source, unless it could be implied from his oflBce. But no such
authority is incident to the office. The directors, and not the
president have the powers of the corporation, and the president
has no implied authority as such to act as the agent of the cor-

Digitized by


June, 1891.] Wait v. Nashua Armory Association. 681

poration, but, like ^^ other agents, he must derive his power
from the board of directors or from the corporation: Gen. Laws,
c 148, sec. 3; Morrill y. Boston etc. B. B. Co., 68 N. H. 68; Charles-
town etc. Shoe Co. v. Dunsmore, 60 N. H. 85, 86; Goodspeed v.
East Haddam Bank, 22 Conn. 530; 58 Am. Dec. 439, 444; Ma-
faone y.Manchester etcB. B. Co., Ill Mass. 72, 75; 15 Am. Bep. 9;
Walworth County Bank v. Fanners' etc. Co., 14 Wis. 325; Titus
V. Cairo etc. R. R. Co., 37 N. J. L. 98, 102; Burrill v. Nahant Bank,
3 Met 163; 35 Am. Dec. 395; Mount Sterling etc. Tump. Co. y.
Looney, 1 Met. (Ky.) 550; 71 Am. Dec. 491; Pierce on Railroads,
32-34; Morawetz on Corporations, 2d ed., sec. 537; Cook on
Stock and Stockholders, sec. 716. The by-law put in eyidence
was therefore but the statement of the general rule of law which
obtains in such cases, and, if wrongly admitted, it is not sus-
ceptible of perception how the verdict could haye been im-
properly influenced, or the plaintiffs in any manner prejudiced,
by putting in eyidence merely what the jury must have been ior
structed as matter of law if the evidence had been excluded.
Exception overruled.

Clark, J., did not sit; the others concurred.

AGENT.— The president of a maDufactnrinf^ corporation, who is in the
active conduct and management of the business, must be presumed to
have all the powers of any agent exercising like control and manage-
ment and to nave authority to do what is done by such agents: Ceeder
y. Loud etc. Lumber Co., 86 Mich. 541; 24 Am. St. Rep. 134, and note;
to the same effect see Sparks v. Bispatch Transfer Co., 104 Mo. 581;
24 Am. St. Rep. 351, and note. The president of a corporation has no
authority as such to make contracts binding upon the corporatiout ex«
cept as to matters arising in the ordinary course of the business of the
corporation: Blen v. Bear River etc. Min. Co., 20 Cal. 602; 81 Am. Dec
132, and note. A corporation cannot be bound by a contract made by
its president, unless power to bind it is given to him by the act of incor-
poration or he is autnorized by the corporation to make the contract:
Mount Sterling etc. Road Go* y. Looney, 1 Met. 650; 71 Am. Dee. 491,
and nolA.

Digitized by


632 Robinson v. Robin80S. [N. H»

Robinson v* Sobinson.

[66 NkW HAIOIHIBI. 600.]

DiyORGB - ORUELTY.— Under a statute authorlsliig diTorce for
^*treatment injuring health or endangering reason^** any behayior by
one of the spouses affecting the other physically or mentally l»
within the meaning of the statute, without regard to the Intent of sucb
behayior. The practice of Christian Science as a doctor by a wife
who believes it to be her duty, is ground for divorce by a husband who
is abnormally sensitive.

divorce for 'treatment injuring health and endangering reason," the
question whether husband or wife has been so treated by the other
as to seriously injure health or endanger resson is one of pure fact It
cannot be declared as matter of law that any particular treatment
may not have that effect

DIVORCE— CRUELTY.— In an action for divorce for treatment
Injuring health and endangering reason the question Is not whether
the treatment reasonably ought, or could be expected seriously to^
injure the health or endanger the reason of a person of ordinary
Intelligence and mental strength, but whether it has in fact had that
effect upon the health or reason of the party complaining.

libel for divorce on the ground of cruelty and treatment
seriously injuring health and endangering reason. The parties
were married in 1882^ and resided together happily until 1884^
when Mrs. Bobinson became interested in Christian Science and
a believer in its doctrines. She attended lectures and took a
course of instruction, and subseqnentiy received the degree of
'TDoctor of Christian Science.'' She at once began, and has con-
tinned, to practice as a Christian Science doctor. Mr. Bobinson
did not believe in the doctrine, and had no sympathy with his^
wife in her advocacy of the practice under it. He did not object
to her belief in, but was opposed to her practice of, the doctrine a»
a doctor, and frequently requested her to give it up, as it exposed
him to ridicnle and injured his business as a druggist. He was
naturally proud, sensitive, and reasonably ambitious, besides being
somewhat passionate and hasty. From being sociable and jovial,
he became moody, morose, reticent, and inattentive to business,
besides generally unhappy from brooding over his changed do-
mestic relations, caused by the practice of Christian Science as^
a doctor by his wife. He separated from her in July, 1889. Ho
afterwards sought, through his personal efforts and those of
third parties, to bring about a reconciliation with his wife on tho
basis that she should give up her practice. She refused, and
only consented to live with her husband on the basis that she
should be allowed to continue to practice as a doctor of Christian

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