Mise.]

City Court of New York, June, 1896.

only the counterpart by which he is bound, and delivering such counterpart to the other party, each counterpart is primary evidence against the party signing it and those claiming under him."

In Taylor on Evidence, § 426, it is said that "When, however, each part is executed by one party only, as often occurs in the case of leases, the two instruments are called counterparts, and each is alternately the best evidence against the party sealing it."

The rule is laid down in Stephens' Digest of Evidence, Article 64, that "Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.”

In the case of Hallett v. Collins, in the United States Supreme Court, reported in 10 How. (U. S.) 174 (184), the court said: "The first objection is that Collins did not sign the indenture or articles of agreement of November 21, 1806, and was, therefore, not bound to convey to Kennedy; and there was, therefore, no consideration which could make the deed binding on him. But the deed on its face purports to be an indenture, of which Collins, from the nature of the transaction, would be holder of the counterpart signed by Kennedy. The original, which is signed by the grantor, would be in possession of Kennedy, the grantee, who cannot object to the validity of his covenant because a paper is not produced which, if in existence, is in his own possession.

Much less could he be heard to make this allegation after the contract has been executed by his own deed, sealed and delivered in pursuance of it."

The defendant Smith, by executing the counterpart of the lease, admitted the facts therein stated and the letting by the landlord, and is fully bound thereby, and the plaintiffs have sufficiently proved such facts.

An admission is the voluntary acknowledgment by a party of the existence or truth of certain facts. 1 Bouv. Law. Dict. 89.

Over his signature and seal the defendant Smith admits that the parties to the lease have thereto interchangeably set their hands and seals.

This is an admission of the existence of the fact that the parties of the first part and the parties of the second part have interchangeably set their hands and seals to the lease.

That is, the parties of each part have signed one counterpart each and then exchanged them. See 2 Burrill's Law Dict. 89; under head of "Interchangeably; in the way, mode or form of ex

City Court of New York, June, 1896.

[Vol. 17.

change. A term constantly used in the concluding clause of indentures (in witness whereof, the said parties have hereunto interchangeably set their hands and seals) and properly imputing not only an execution by all the parties, but an actual interchange of signatures and seals and such as takes place in the case of instruments executed in duplicate, or in part and counterpart, where the signature and seal of each party are affixed to the part given to the other."

Statements contained in deeds are competent evidence against the parties executing them. Demeyer v. Legg, 18 Barb. 14; Hardenburgh v. Lakin, 47 N. Y. 109.

The defendant Smith, therefore, admits a counterpart indenture signed and sealed by Philip Kissam, William Cruikshank and George Lord Day, as trustees for John Jacob Astor.

The plaintiffs having served upon the defendant Smith a notice to produce on the trial the counterpart signed by the landlords, in his possession or under his control, and he having refused so to do, the counterpart lease in evidence, by which the defendant Smith admits the signing and sealing of the parties interchangeably, at once becomes in any case the best secondary evidence of the counterpart lease executed by the lessors.

The Statute of Frauds is fully satisfied if there was at any time a contract required by its provisions. Wood Stat. of Fr., § 345; 8 Am. & Eng. Ency. of Law, 711.

Here the existence of the lease, signed and sealed by the trustees for John Jacob Astor, etc., is fully established by the voluntary and uncontradicted admissions of the defendant Smith.

The Statute of Frauds places no prohibition on the form, way or manner of the making of contracts. The parties may still make them in any way they see fit.

The statute simply requires that certain agreements shall be in writing.

It introduced a new rule of evidence in certain cases without condemning as illegal any contract that was legal before.

The Statute of Frauds is a shield which a party may use or not for his protection, just as he may use the Statute of Limitations, the statute against usury and that against betting and gaming. Crane v. Powell, 139 N. Y. 379. Hence it follows that the defendant Smith, when he signed the counterpart of the lease in evidence, waived the statue of frauds in this case, by admitting the lease to be signed and sealed by the lessors.

And the lessors having permitted the defendants to enter upon and occupy the premises upon the faith of the counterpart lease signed by the defendants, the defendant Smith is now estopped from denying the truth of the statements therein contained. Stephens' Dig. of Ev., § 188; New York Rubber Co. v. Rothery, 107 N. Y. 310.

The judgment and order appealed from should be reversed and new trial granted, with costs to appellant to abide the event.

VAN WYCK, Ch. J. and CONLAN, J., concur.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

WILLIAM E. WAMSLEY, Plaintiff, v. THE H. L. HORTON COMPANY (Limited), Defendant.

(Supreme Court, New York Special Term, June, 1896.)

Abatement and revivor Dissolution of foreign corporation.

After dissolution of a foreign corporation, an action pending against it in the courts of New York may not be continued against its directors.

MOTION to continue action.

Alexander S. Bacon, for motion.

John R. Dos Passos, opposed.

PRYOR, J. Pending an action in this court against the H. L. Horton Company (Limited), an English corporation, the company was dissolved; whereupon motion is made to continue the action. against three certain individuals, "as trustees of the defendant for its creditors and stockholders." Were the company merely in process of liquidation, Societe, etc., v. Milliken, 135 U. S. 304, 309, is authority for the proposition that, nevertheless, the action might be prosecuted to judgment against the corporation. But the uncontradicted fact is that the company no longer exists as a legal entity, and the necessary consequence is the abatement of the suit against it. McCulloch v. Norwood, 58 N. Y. 562; National Bank

Supreme Court, June, 1896.

[Vol. 17.

v. Colby, 21 Wall. 609, 615; Taylor on Corp. 435. May the action be revived and continued against the directors of the company?

Undoubtedly, since the assets of a defunct corporation are subject to a trust or lien in favor of creditors and stockholders, such assets, in the hands of these directors, would be accessible in an appropriate action against them. Tinkham v. Borst, 31 Barb. 407; Field on Corp., §§ 491, 92; Mumma v. Potomac Co., 8 Pet. 281; Hastings v. Drew, 50 How. Pr. 254. That, however, is not the relief contemplated by the motion, but its avowed and only object is to continue against the directors an action commenced against the corporation.

Whether the action against the corporation may, on its dissolution, be continued against the directors, being a matter of procedure, is to be determined by the law of the forum. Sturges v. Vanderbilt, 73 N. Y. 384, 389. Where, then, is the statute of New York which authorizes an order to continue this action against the directors of the extinct corporation? Not section 756 of the Code, for here the liability has not devolved upon the directors. Nor yet section 4 of chapter 295, Laws of 1832, for it is repealed and no longer in force. Grafton v. Union Ferry Co., 13 N. Y. Supp. 878, 879. Indeed, the only statutory provision which plaintiff adduces in support of the motion is section 30 of the General Corporation Law. But that enactment is of no avail to him, because, first, it is plainly applicable only to domestic corporations (Vanderpoel v. Gorman, 140 N. Y. 563); or else, secondly, because pursuant to the laws of England a liquidator has been appointed for winding up the affairs of the company and distributing its property. Marstaller v. Mills, 143 N. Y. 398, 401. The plaintiff must apply for redress to the courts of the country of which the corporation is the creature. Redmond v. Enfield Man. Co., 13 Abb. (N. S.) 332, 334.

Motion denied, with costs.

GEORGE SHRADY, Plaintiff, v. GEORGIANA M. LOGAN, Defendant. (Supreme Court, New York Special Term, June, 1896.)

1. Marriage Annulment - Concealment of birth of illegitimate child.

The fact concealed from a husband that the wife before marriage had given birth to an illegitimate child does not, in itself, constitute such fraud as will authorize an annulment of the marriage.

2. Same.

Held, as matter of fact in the present case, that plaintiff was, before his marriage to the defendant, apprised of the fact that she had previously given birth to an illegitimate child.

ACTION for annulment of marriage.

Charles W. Coleman, for plaintiff.

Britton H. Tabor, for defendant.

PRYOR, J. After a conjugal connection of ten years, during which it is conceded the defendant conducted herself with irreproachable propriety as a wife and the parties lived together in harmony and happiness, it is now sought to annul the marriage on the ground of the fraud of the defendant in concealing her antenuptial incontinence. The specific allegation of the plaintiff is that the defendant represented herself to be without vice or blemish in character; whereas, in fact, her conduct before the marriage had been lewd and corrupt, and, at the time of the marriage, she was the mother of an illegitimate child.

Supposing these facts to have been disguised from the plaintiff, and that he married the defendant in reliance on her good character: still, upon the authorities, the deception does not seem to be such as to justify an annulment of the marriage contract.

The Code authorizes a decree of nullity for "fraud " (§ 1743); but in the absence of statutory definition of the fraud that will avoid a marriage, to ascertain its nature and properties we must have recourse to the adjudications of the courts and the expositions of authoritative text-writers. Benton v. Benton, 1 Day, 111, 113. The notion is not to be entertained that the marriage relation, the stability of which is sedulously cherished and supported by the law as a cardinal principle of public policy, is to be dissolved by those