Court of Common Pleas.

In the matter of the application of Jonathan K. Hassinger, for the Benefit of the Insolvent Laws. Jonathan K. Hassinger, in September last, presented his petition for the benefit of the Insolvent Laws, in the usual form: upon the day fixed for hearing, he was opposed by Messrs. St. George T. Campbell and Francis E. Brewster, for creditors, and his application urged by Mr. Joseph R. Ingersoll. A mass of testimony was introduced, and the case was finally determined on the 14th April, by his discharge; the opinion of the court containing fully all the points of the case, being delivered as follows by Judge Randall :

Jonathan K. Hassinger has presented his petition to the Court of Common pleas, setting forth that by reason of sundry losses and misfortunes, he is unable to pay and satisfy his just debts, and praying that he may be discharged under the Insolvent laws of the Commonwealth, on surrendering his property, (a schedule of which is annexed to his petition) for the benefit of his creditors.

His discharge is opposed on three grounds. It is alleged, 1. That he has concealed a portion of his estate or effects. 2. That he has fraudulently conveyed a portion of it, for the use of himself, his family and friends, and

3. That he has embezzled or applied to his own use, money or other property, with which he was entrusted, as bailee, agent, or depository.

If either of these propositions be established, it will be fatal to his application.

As to the first it is admitted there is no direct proof of any concealment, and it is not denied that the petitioner has made a full and correct return of all the real estate ever known to have been in his possession. But it is contended, that his statement of losses is improbable, and it is urged therefore that he has not accounted for all the personal property traced to his possession.

The petition states, that about the year 1828 he began to purchase and sell stocks, and continued in that business until his entire failure. That from the year 1834 inclusively, his operations were extremely disastrous, and that upon a comparison between the profitable and unprofitable transactions, he has ascertained his losses to be not less than $189,376 C3; and that he has paid in interest, the greater part of which was usurious) not less than $98,260.

As a general rule the statement exhibited under oath by a petition for the benefit of the Insolvent Law, is taken prima facie as correct, and the burthen of proving it erroneous lies upon his creditors; this they may do by the examination of the petitioner himself, by other evidences, or they may resort to both modes, they having the right first to examine the petitioner, and then to exhibit other testimony to contradict him.

In the present case, as (to this point) the creditors have confined themselves to the examination of the petitioner; in that examination he has re-asserted the statement made on the face of his petition, and although he does not give each particular item of loss, he affirms the aggregate to be correct he states that he was engaged for two months prior to filing his petition in ascertaining the amount from bills in his possession and from memory. The bills (which he asserts will show most of his losses) were delivered to the opposing creditors, and time allowed for their examination, and although it was asserted in argument, no evidence has been exhibited to discredit his statement; he also refers to individuals who could prove losses of $10,000 and $15,000 on single operations, and they have not been called on to contradict him. I am, therefore, bound by every rule of evidence to receive this statement as correct, and I do so the more readily, as if the other statements on the face of his petition be correct, (and they were capable of contradiction if they are not so,) it was unnecessary to swell these items to the amounts they are, as the aggregate value of the property returned, and the losses sustained exceed by many thousand dollars, the debts returned as owing by him. I know the contrary was assumed in the argument, but the error of one of the gentlemen was in charging the petitioner with the full amount of the stock and certificates of loan hereinafter

referred to; whereas he can only be called on to account for which was far below the nominal value. And I presume the the sums actually received by him when they were pledged, other gentlemen fell into the error which deceived me at the outset of my examination, by charging him with various exhibits of judgments and mortgages set forth in his petition, which would leave a considerable sum unaccounted for; but on a more careful examination I discovered that the same debts or judgments were repeated in three different schedules, and were therefore improperly charged more than once.

The second objection is founded on a bill of sale of his household furniture executed by the petitioner to his sister, Eliza H. Hassinger, in March, 1834, and the confession of two judgments, one in favor of George Fales, one of the executors and trustees under the will of Lewis Rush, and the other to D. S. Hassinger as trustee for Mrs. Hassinger. In relation to the bill of sale it appeared that the petitioner had since the death of his father (which took place in 1821) been in the habit of receiving all the rents of the real estate situate in Philadelphia, and paying to the other heirs from time to time such sums as they might require, a balance always remaining in his hands. On the 20th of March, 1834, when his difficulties commenced, he executed a bill of sale of the household furniture then in his possession, valued at $2,371 60, to his sister Eliza, for the purpose of securing in part the balance due to her. The furniture, however, always remained in his actual use and possession, and although Eliza occasionally resided in his family there was no visible change of ownership.

The law is too well settled now to admit of a doubt that a bill of sale of personal property unaccompanied by possession is in law fraudulent and void as against creditors, and if any one had issued an execution and levied on this furniture as the property of the petitioner, the claim of Eliza under the bill of sale would not have availed her; but it does not lie in the mouth of the grantor to allege this legal fraud, or to take advantage of his possession as against the grantee, as between the parties it is binding, and the petitioner had no right to consider the furniture as belonging to him. This question has been frequently before the Insolvent Court, but the investigation has been uniformly confined to the bona fide character of the consideration. If the bill of sale was made in good faith, and to secure a debt actually due at the time, the creditors are referred to other proceedings to substantiate their legal objection. In the present case, I have no doubt of the indebtedness to Eliza at the time this bill of sale was executed, and that consequently as between the parties it is binding. A deed void under the statute of Elizabeth, is binding against the party, his executors or administrators— Buchlar vs. Gloniger, 2 Watts, 227.

The judgment to Mr. Fales, was given to secure the repayment of a sum of money left by him in the hands of the petitioner to invest for the trustees; but which was made use of by him in his business. That to D. S. Hassinger was given to secure the re-payment of certain rents, received by the petitioner of property held by David in trust for Mrs. Hassinger.

That judgments, being a lien on real estate are to be considered as a species of conveyance I agree, and where a debtor executes a judgment for the purpose of creating a lien on his real estate, where the debt is not due, or for the purpose of securing future benefit to himself, it will as effectually prevent his discharge under the insolvent law, as the most formal conveyance of his property; but where the debt is justly and honestly due, it can no more operate against his discharge, than a bona fide payment of an honest debt. The question then again is, were these debts justly due; that they were so has not been denied. The petitioner received these funds, made use of them for his own purposes, and the trustees had made themselves liable for the amounts to their cestui que trusts; they could have commenced suits and obtained judgments against the will of the petitioner by due course of law, and his voluntary confessing judgment was merely anticipating what the law would have compelled.The propriety of thus preferring one creditor over others having equal claims, after the insolvency of the debtor has been ascertained, is not a subject for my consideration, all I

have the right to say is, that until the Legislature think proper to direct otherwise, such a preference is legal.

The third objection has been one of more difficulty, and during the able and ingenious argument has been properly considered as the principal obstacle to the petitioner's discharge. Prior to the act of 1836, the only subject of inquiry on the application of a petitioner for the benefit of the insolvent law, was whether he had concealed or fraudulently conveyed any portion of his property or effects, with a view to defraud his creditors or to benefit himself or family, and it matters not how dishonestly he may have acquired his property. If none of it was concealed or fraudulently conveyed away, he was entitled to his discharge. But by the 42nd section of the act of 16th June, 1836, it is provided, "If it shall appear to the court upon the hearing of any petitioner as aforesaid, either upon the examination of the petitioner or other evidence that there is just reason to believe either First, That the insolvency of the petitioner arose from losses by gambling or by the purchase of lottery tickets: or Second, That such petitioner had embezzled or applied to his own use any money or other property with which he had been entrused either as bailee, agent, or depository, and to the prejudice of the opposing creditors," it shall be the duty of the court to commit such person for trial, &c.

In January, 1837, the petitioner was elected President of the Philadelphia, Germantown and Norristown Railroad Company, a Company incorporated by virtue of an Act of Assembly, passed the 17th day of February, 1831, with a capital of 8000 shares of fifty dollars each, and the privilege of increasing the number of shares to ten thousand.

By a supplement to this Act passed 30th March, 1833, the Company was authorized to increase the number of shares to sixteen thousand, and "to borrow money on loan to finish their works, and to give mortgages, certificates, or other evidences and securities for the payment thereof-the same to be convertible or not convertible into stock, as shall be agreed on between the company and the lender or lenders." By the 7th section of the Act of Incorporation the President and Managers were directed to procure certificates of stock and deliver one certificate signed by the President, and countersigned by the Treasurer, and sealed with the seal of the corporation, to each Stockholder, which certificates were made transferable at the pleasure of the holder in the presence of the President or Treasurer, each of whom was directed to keep a book for that purpose.

By the By-laws it was made the duty of the President to superintend and enforce the contracts entered into by the Company, and to have charge of the seal, but not to affix it to any instrument not provided for by law or the By-laws, without the order of the Board. Of the 16,000 shares of stock authorized by law, six thousand were subscribed for and fully paid in money-two thousand were taken by the contractors and paid for in work, and two thousand one hundred and sixty were converted from the loan. Certificates for two thousand additional shares were authorized to be issued by the Managers, but were not subscribed for or taken, and consequently remained the property of the company.

Three loans were authorized by the Managers, one in May, 1833, for $300,000, one in July 1836, for $200,000: both of which were taken-and one authorized in November, 1836, of $100,000, of which but $30,000 or $35,000 was taken.

In the year 1837, the petitioner and Treasurer commenced the issuing of certificates of stock and loan, without the knowledge of the Managers. At first he alleges to be retained by him as collateral security for his own endorsements on the notes of the Company, and to raise money for their use; but subsequently it is admitted pledged as collateral security for moneys borrowed by the petitioner and by him applied to his own use. These issues were continued from time to time and for various amounts, until April, 1839, when the unauthorized issues were discovered by the Managers, and on examination it was ascertained that certificates for upwards of four thousand shares of stock and of about $150,000 of loan had been issued without the knowledge of the Managers, and pledged to various individuals and companies for such sams as they were willing to advance on them,

That this is a case of embezzling and applying to his own use, moneys or property with which he was entrusted as bailee, agent or depository, such as was intended to be prevented or punished by the Legislature, by the act of 1836, I can have no doubt; but to complete the offence it is necessary that this should be done," to the prejudice of the oppos ing creditors," and hence the difficulty. The Legislature no doubt intended to protect employers and cestui que trusts from the embezzlements of their agents and trustees, and to favor the means and option of punishment in their hands— hence they have made it necessary that the party injured shall oppose the discharge; no other creditor can take advan tage of this right. A petitioner who may have been guilty of embezzlement within the meaning of this section, is left the privilege of making restitution before his application for the benefit of the insolvent law, and the party injured has the option of preventing the discharge, or of resorting to any other remedy he may think more efficacious. In the present case, the Philadelphia, Germantown and Norristown Railroad Company do not oppose the discharge of the petitioner, although they have full knowledge of the application, some of its officers having been examined as witnesses. And it appeared in the course of the evidence, that both the petitioner and the treasurer have been arrested and held in recognizance to answer for the offence of a criminal conspiracy to defraud the company, on whose complaint did not distinctly appear. But he is opposed

1. By holders of undisputed certificates of stock. 2. By holders of excessive or unauthorized certificates of stock, and

3. By holders of certificates of excessive or unauthorized loan; each of whom allege they are parties injured by the fraud, and entitled to oppose. As to the first class I have no difficulty in saying they have no right as individuals. By becoming stockholders in the company, they surrendered all control over their property to the extent of the stock held by them, to the "President and Managers," who alone are authorized to "conduct the business of the company." After the incorporation they are not known as individuals, they have no legal existence but as a corporate body, and can only be known through the means of the corporate seal. (1 Kyd on Corp. 267.) Indeed, should a majority of the stockholders desire to oppose, and the "President and Managers," under their corporate seal agree to a discharge, the individuals could not be heard in opposition to that agreement. This was in effect decided by the Supreme Court of Pennsylvania, in a case reported in 6. Serg. & Rawle, 505. There a majority of the members of a corporation applied for an alteration in their charter, under the provisions of the act authorizing the Supreme Court to sanction such alterations; the alterations were not presented under the seal of the corporation, and were in fact opposed by the trustees or managers having charge of the seal. Chief Justice Tilghman in delivering the opinion of the court says, “In these,” (the trustees and managers,) “are vested all the property and all the poreers and privileges of the corporation." And the alterations were not sanctioned. If then a majority cannot, surely a minority as is the case here, may not, prosecute a measure they may deem for their interest, in opposition to the opinion of those who are by law authorized to conduct the business of the company. And although it may appear to be harsh, that a man cannot prosecute his own interests as he may deem most beneficial to himself, yet a little consideration will convince us the rule is a good one. A corporation is composed of numerous individuals, of various opinions, and who in all probability would not be unanimous on any one question of expediency; by delegating their interest to a Board of Managers, and authorizing a majority to act for the whole, the interest of all will be preserved; and again it is to be presumed that a Board of Managers specially delegated to attend to any given subject will have superior knowledge and information of the business entrusted to their charge, and thus be enabled to make arrangements more to the interest of their constituents than other individuals can do, and yet all benefit and advantage of this superior knowledge and arrangement would be frustrated if any one individual has the power to oppose it by refusing his assent,

What is the object of the company in not opposing does not appear, nor is it for me to inquire-it may be that they have made a satisfactory arrangement with the petitioner or his friends to indemnify them; or, they may think it more for their interest to join in the prosecution for a conspiracy against the petitioner and the treasurer, than to proceed against a single individual for embezzlement; they may have various reasons for the course they pursue, and no doubt they act as they think best for their interest, and surely individual stockholders cannot deprive them of that privilege.

The right of the next class to oppose depends upon the effect of the certificates of stock issued by the President and Treasurer under the seal of the company, but without the knowledge of the Managers-if these are binding on the company and the holders are thereby created stockholders, then they come within the principal just decided, otherwise they do not and will have the right to oppose. As this is a question now pending and undetermined in another court, I would have been glad had the decision been first pronounced there, but as the point must necessarily be determined in deciding this application I cannot hesitate in declaring my views.

The charter of the company provides that "certificates of stock signed by the President and countersigned by the Treasurer, and sealed with the common seal of the corporation, shall be delivered to each stockholder, which certificate shall be transferable at his pleasure in the presence of the President or Treasurer; and that the assignee holding such certificate having first caused the assignment to be entered in a book of the company, to be kept for the transfer of stock, shall be a member of the corporation."

All the excessive or unauthorized issues are in the usual

form, they are signed by the President, countersigned by the Treasurer, and sealed with the common seal of the company; they cannot on their face be distinguished from the authorized issues; and such being the case, I have no doubt the company are bound to recognise the holders of them as members of the corporation; if it were not so, an end will be put to all transfers of stocks or interest in any corporation; no precaution could guard against such fraud, the utmost a purchaser could do would be to inquire at the office of the company and of the very persons who issued the certificates, whether they were genuine, of course the answer would be in the affirmative, and where one of two innocent persons must suffer by a fraud, it is more reasonable that he who employed and confided on the deceiver and thus enabled him to perpetrate the fraud, should be the loser than an innocent third person. And again, these acts were committed by the petitioner or within the scope of his authority as President; he was to sign all certificates, superintend transfers, &c. and although he exceeded his authority from the managers, this could not be known to the community, and all principals are liable civilly, though not criminally for the fraud of their agents, committed within the scope of their authority.

It will be recollected that these excessive issues form part of the additional stock authorized by law, and do not increase the authorized capital of the company; had they done so, a different question not now necessary to determine, might have arisen, but would not have varied the result.

The remaining class of opposing creditors are the holders of the unauthorized certificates of loan; it is said they are prejudiced by the issue of these certificates, because the security of these debts has been thereby endangered and the company rendered less liable to meet its engagements by

this unauthorized increase of its liabilities.

If the principles I have advanced on the preceding points be correct, the company is undoubtedly liable for the amount of their issues, and whether the holders of them have or have not been prejudiced, depends upon the solvency or insolvency of the company, this is a question which I cannot in this proceeding, to which the company is not a party, be called on to determine; it may depend on the solvency or insolvency of its debtors, and of this surely I can not inquire; the presumption of law is that every authorized corporation is of sufficient ability to meet its engagements -but if instead of the petitioner being the agent of a corporation he had been the agent of an individual and em

bezzled his funds, and the emyloyer for reasons satisfactory to himself should agree to the discharge of the petitioner (as the company virtually do here by not opposing) would it for a moment be contended that the creditors of that employer could come into the Insolvent Court and require him to show his ability to pay all his debts for the purpose of showing they were not injured by the embezzlement of his clerk, and thus if he refused or could not do so, authorize them to prevent the discharge of such clerk; I think not, and there can be no difference between the rights of the creditor of a corporation and those of individuals.

The question for determination here is not whether the petitioner if guilty of the frauds imputed to him, is to be punished or set free, but whether the party injured by those frauds shall have the right to select between the modes of punishment prescribed by law; they may oppose the discharge of petitioner under the Insolvent law and have him tried in the mode there prescribed, or they may prosecute the charge of conspiracy to defraud; they may omit to do either, but they cannot pursue both; they have made the election not to oppose his discharge under the Insolvent law, and I do not think it is in the power of either their indivi dual stockholders or their creditors to deprive them of this right; no sufficient reason having been shown to the contrary; the petitioner will be discharged as an insolvent debtor but must renew his recognizance with sufficient sureties to appear at the next court of General Sessions to answer the charge of a criminal conspiracy to defraud, and there his guilt or innocence will be determined by a jury of his country.-Phila, Gaz.

Early Physicians.

celebration in Connecticut :

Dr. Brigham remarked; the services rendered by physicians to the early settlers in Virginia, and to those of Plymouth and Connecticut were of the utmost importance. It was true, that for the first half century, but few physicians came over, who devoted themselves exclusively to the practice of medicine-but many of the clergy, of that period, were also physicians-for the Puritan Clergy of England, had, for a considerable time, looked to the practice of medicine for a livelihood. Thus the Rev. John Fisk, of Salem, and Deacon Giles Firmer, of Boston, who arrived soon after the settlement of Plymouth, were highly esteemed as clergymen and physicians. Several of the early Presidents of Harvard College were also physicians. Charles Chauncey, the second President, and who presided over this institution from 1654 to 1672, was a well educated physician. He regarded the study of medicine as of the greatest consequence, and used to say, "there should be no distinction between physic and divinity." He had six sons, all of whom studied medicine-and as Cotton Mather observes, "had an eminent skill in physick, which like their father they used for the good of many."

The first physician who came to this country was Dr. Walter Russell, who came to Jamestown, Virginia, in 1608. He is highly spoken of by Capt. Smith, to whom he rendered surgical assistance. Dr. Russell accompanied Capt. Smith on a voyage of discovery from Jamestown to the Chesapeake, and up the Potomac to the falls. Some islands they discovered in the Chesapeake, were named Russell's Islands, in honor of the first physician who came to this country.

Twelve years after this, the May-Flower arrived at Plymouth-and in it came Dr. Samuel Fuller, a Deacon in Mr. Robinson's church, and who devoted himself to the practice of medicine until his death. He was greatly beloved by the colonists and highly esteemed as a man, theologian and physician. He was frequently sent for during sickness in the adjoining settlements. Thus he often visited Salem, Dorchester, Boston, and Charlestown. Governor Endicott expressed great obligation to him for his assistance during a sickness at Salem.

I can find but few facts relating to his method of practice -one however is curious. In a letter to Governor Bradford, June 28th, 1630, he says, "I have been to Matupaw (now Dorchester,) and let some twenty of those people blood."

Another letter of his to Governor Bradford, shows the extreme destitution of the colonists during sickness. He states that he had been to Charlestown where there were many sick, but he "could do them no good, as he had no drugs, nor any thing fitting to work with." Dr. Fuller died in 1632. Among his descendants have been many celebrated physicians. Dr. Matthew Fuller, the surgeon to the first troops raised in the colony was, I believe, a descendant of his, and our esteemed townsman, Dr. Silas Fuller, is a descendant, and has now in his possession some articles brought to this country by his illustrious ancestor, in the May-Flower. I know not whether any physicians accompanied our forefathers who first settled Connecticut. I apprehend there were none. In the celebrated attack on Mystic Fort, in 1637, led on by Capt. Mason, in which 600 Indians were killed, our ancestors had no surgeon-though it appears there had been one despatched in a vessel ordered to sail from Narraganset Bay, for Pequot harbor. Gov. Winthrop of Connec ticut, himself, was a physician, and brought with him a large supply of medicines which he liberally distributed. But he

Soon after this, there must have been physicians at every settlement in the State, for so early as 1647 there was a very curious law passed, a law which I presume our friend from New York, (Col. Stone,) thinks ought not to have been repcaled,—a law ordering that "no person under 20 years of age, and no person unaccustomed to it, should use any tobacco until he had obtained a certificate from an approved physician, that it was useful for him.”

Since that period Connecticut has been well supplied with skilful and celebrated medical men. Some of the best surgeons of the revolutionary army were from Connecticut, two of whom, (Dr. Watrous of Colchester, and Dr. Hall of East Hartford,) still survive, and are still engaged in the practice of their profession. The latter gentleman has honored us with his presence this day.

Time would fail me were I to enumerate the distinguished medical men who have practiced their profession in Connecticut. Two, however, I must re-call on this occasion, and who were known to most that are present, and who will long be remembered, not only by those who personally know them, but so long as two of the most noble Institutions of our country exist-institutions which now adorn the beautiful eminences at the western part of this city.

For these institutions, the American Asylum for the Deaf and Dumb, and the Connecticut Retreat for the Insane, we are greatly, if not mainly indebted to the physicians alluded to,-physicians alike distinguished for their medical skill and their enlarged and practical philanthropy. Their memory I now propose: Conn. Cour.

The memory of Dr. Cogswell and Dr. Todd.

Brick Making.-The number of bricks, made and burnt within the limits of this city, for the year 1839, is computed by the manufacturers at 31,000,000; and what is remarkable, the stock remaining on hand at the close of the year was less than the previous year. As there were fewer buildings erected in Baltimore during the last than for several years, the number of bricks shipped to other places must have been unusually large. By referring to our quotations. their descriptions and prices may be ascertained.-Lyford's Pr. Cr't.