Woolsey v. Cummings Car Works.

for the payment of the difference, whatever it might be, between the amount of the dividend, when declared, and the amount at which the note was taken. The transaction appears to have been for the advantage of the trust in the price at which the goods were sold; and the length of the credit given is not such as to amount to a breach of trust, especially in view of the pains taken and means employed to guard the trust against loss in the transaction. That exception will be overruled. The fourth exception is to the amount of compensation allowed by the master. There were three sales of the property of the trust. The first, which was of the real estate, machinery, tools, &c., took place in the latter part of May, 1877. It was set aside for inadequacy of price, and the property was again sold (but for a higher price) on the 1st of October following. The last sale was of certain choses in action, sold to close up the trust, and it took place in May, 1878. The master, after a review of all the facts, reports that the receiver's compensation should be $200 a month, from the time of his appointment, October 17th, 1873, to the 1st of May, 1878. He also reports that the receiver should be allowed something for his services and expenses in finding a receiver's certificate of the New York and Oswego Midland Railroad Company, delivered by Mr. Chaddock to certain creditors of the car company by mistake (two being delivered instead of one, to which alone they were entitled), the loss of which was not discovered until the examination before the master. The receiver was the treasurer of the car company. At a meeting of the creditors and stockholders, held in view of its embarrassments and the necessity of applying for the appointment of a receiver, he was designated as the proper person to be appointed receiver, and the amount suggested as his compensation was the amount which he was receiving as treasurer, $200 a month, for his expenses of living; his compensation, however, to be fixed, of course, by this court. He stated to the meeting that he would act as receiver if appointed, and would draw $200 a month for the expenses of his living, leaving it to this court to fix his compensation. He has rendered services of a very valuable character to the trust for a considerable length of time; he conducted, under order of this

Woolsey v. Cummings Car Works.

court, the business of the company, railroad car building, and he has generally given to the business of the receivership, careful and valuable attention. I find in the evidence no reason for any imputation whatever that in any of his transactions in the trust, he has been governed or actuated by any unworthy motives, or sought to promote his private ends. Nor do I think the allowance too great. The exception on this point, therefore, should be overruled. There is nothing before me from which I could make an award of compensation to the receiver in respect of his trouble or expense in finding the missing certificate, if I deemed it proper to make one; but, in my judgment, he is not entitled to any compensation in the matter. He would have been chargeable with the value of the certificate if he had not been able to find or account for it.

Of the exceptions of Mr. Griffing and Messrs. E. S. Jaffray & Co., the first objects to the payment by the receiver of the mortgage encumbrances which were on the property of the company at the time of its failure, because they were made, as alleged, without authority; but it is clear from the evidence that the payments referred to, if made without an order, were made in the exercise of a sound discretion. The second exception is an objection to the order authorizing the receiver to carry on the business for the benefit of the trust. Obviously, the propriety of making the order, cannot be called in question by an exception to the master's report on the receiver's account. The exception will, therefore, be struck out. The third objects to the finding of the master that the business done by the receiver in manufacturing under the authority just mentioned, was productive of profit to the trust. The fact is immaterial to any question legitimately arising on the master's report, unless it be as to the amount of compensation to be allowed to the receiver. That would be affected by losses incurred in the manufacturing business through his negligence or misconduct; but no loss on those accounts, or either of them, is charged or appears. The exception will be overruled. The fourth exception is the same as one which has been already considered, the third exception of the trustees, which was overruled. The fifth and sixth exceptions refer to the com

Woolsey v. Cummings Car Works.

pensation to be allowed to the receiver. For reasons already given on the exception on the same subject by the trustees, the exception will be overruled. The seventh, eighth, sixteenth, eighteenth and nineteenth exceptions are objections to the form of the receiver's accounts and the alleged non-production of vouchers. It appears, by the master's report, that the trustees and Mr. Griffing appeared before him at the taking of the account, and that the only objections made to the account or the allowance thereof, were those on which he has passed, none of which have any reference whatever to the subjects of the exceptions now under consideration. The other exceptants, Messrs. E. S. Jaffray & Co., did not appear before the master, and were let in to except on condition that they should adopt the exceptions of Griffing. Under the circumstances, the exceptions last specified should be struck out. The ninth, tenth, fourteenth, fifteenth and twentieth exceptions are merely general complaints, in the most general terms, of mismanagement of the trust estate. They will all be struck out. The eleventh is a charge of fraud and imposition, on the part of the receiver, on the court, in obtaining an order authorizing him to make a contract with the New Jersey and New York Railroad Company. The twelfth is a mere personal allegation of non-compliance, on the part of the receiver, with that order. The thirteenth charges misrepresentation, fraud and imposition on the court, on the part of the receiver, in obtaining an order to make a settlement with the last-mentioned railroad company. For reasons before stated, these exceptions will all be struck out. The seventeenth is an objection that the receiver ought not to be allowed for commissions paid on sales of goods of the trust to the railroad company just mentioned. This exception will, under the circumstances, be struck out, on the ground of surprise. The objection is made, for the first time, by the exception. Though all the exceptions will be either overruled or struck out, the exceptants will not, under the circumstances, be required to pay costs. Their action in excepting and pursuing the exceptions, was in behalf of all the creditors.

Newark Savings Institution v. Forman.

THE NEWARK SAVINGS INSTITUTION

v.

SAMUEL R. FORMAN et al.

The act of 1880 (P.L. of 1880 p. 255), providing that in foreclosure proceedings thereafter commenced, no personal decree for deficiency shall be taken, applies to mortgages given before the date of its passage, and is not, so far as cases in which there is a remedy at law are concerned, unconstitutional as depriving a party of any remedy for enforcing a contract which existed when the contract was made, because a more efficacious remedy of the same sort at law remains, and the legislature may, without infringing the prohibition of the constitution, take away one of two or more equally efficacious remedies of the same sort.

Bill to foreclose. Demurrer.

Mr. E. Q. Keasbey, for demurrants.

Mr. A. S. Hubbell, for complainant.

NOTE. The following cases illustrate the rule that a statute taking away one remedy for enforcing a contract or right is not unconstitutional if another remedy remain.

Abolishing distress for rent. Van Rensselaer v. Snyder, 9 Barb. 302, 13 N. Y. 299; Guild v. Rogers, 8 Barb. 502; Lockett v. Usry, 28 Ga. 345; Conkey v. Hart, 14 N. Y. 22; Van Rensselaer v. Hays, 19 N. Y. 68.

Requiring that the makers and endorsers of a note shall be sued together. McMillan v. Sprague, 4 How. (Miss.) 647; see Givens v. Western Bank, 2 Ala. 397; Baldwin v. Newark, 9 Vr. 158.

Repealing a statute authorizing a state to be sued. Memphis R. R. v. Tennessee, (S. C. U. S.) 21 Alb. L. J. 355; Tennessee v. Sneed, 96 U. S. 69; or a county, Hunsaker v. Borden, 5 Cal. 288.

Repealing a statute authorizing the forfeiture of a corporation's franchises for non-payment of its debts. Aurora Co. v. Holthouse, 7 Ind. 59; State v. Tombeckbee Bank, 2 Stew. 30; see Powell v. Sammons, 31 Ala. 552; Story v. Furman, 25 N. Y. 214; Ireland v. Turnpike Co., 19 Ohio St. 369; Read v. Frankford Bank, 23 Me. 318.

Aliter, as to a repealer exempting the stock from liability, but rendering the stockholders personally liable. Hawthorne v. Calef, 2 Wall. 10; see Conant v. Van Schaick, 24 Barb. 87; Read v. Frankfort Bank, 23 Me. 318; Coffin v. Rich, 45 Me. 507; Syracuse Bank v. Davis, 16 Barb. 188.

Newark Savings Institution v. Forman.

THE CHANCELLOR.

This cause and two others (foreclosure suits) stand as on demurrer, by order of the court, upon the claim and prayer of the bills for a personal decree for deficiency, which is sought, in two of them, against a person who assigned to the complainant the bond which the mortgage was made to secure, guaranteeing payment. In the other it is prayed against the obligor in the bond, to secure payment of which the mortgage was made. In the two cases first mentioned, the mortgages were given in 1873, and in the last the mortgage was given in 1875. The question is whether, in view of the provision of the first section of the act "concerning proceedings on bonds and mortgages given for the same indebtedness, and the foreclosure and sale of the mortgaged premises thereunder" (P. L. of 1880 p. 255), this court has jurisdiction to make such decree. That section is as follows:

"In all proceedings to foreclose mortgages hereafter commenced, no decree shall be rendered therein for any balance of money which may be due complainant over and above the proceeds of the sale or sales of the mortgaged property, and no execution shall issue for the collection of such balance under such foreclosure proceedings."

Rescinding a summary remedy against a stockholder in default as to payments on his stock. North East Alabama R. R. Case, 37 Ala. 679.

Repealing a resort to a mandamus. State v. Gaillard, 11 S. C. 309, affirmed in U. S. S. C., March 2d, 1880; or a scire facias, Parker v. Sharnonhouse, 1 Phil. (N. C.) 209; or an action of debt on a judgment after execution returned. Grosvenor v. Chesley, 48 Me. 369; Dennis v. Arnold, 12 Metc. 449.

Altering, by general statute, the venue of an action against an insurance company for loss under a policy. Howard v. Kentucky Ins. Co., 13 B. Mon. 282; Sanders v. Hillsborough Co., 44 N. H. 238; see Gut v. State, 9 Wall. 35; Osborn v. State, 24 Ark. 629.

Repealing an act allowing a landlord to claim rent out of the proceeds of property seized on execution on the demised premises. Stocking v. Hunt, 3 Denio 274; see Barry v. McGrade, 14 Minn. 163.

Providing that equity alone shall have jurisdiction of suits to recover property which had been set apart under the homestead laws and subsequently sold. McLellan v. Weston, 59 Ga. 883.

Preventing a judgment being obtained as soon as it could have been by the remedy in force when the debt was contracted. Knoup v. Piqua Bank, 1 Ohio