Page images
PDF
EPUB

to its terms. In ordering the issuance of bonds for $1,000,000 and in the use of the term "money," the court held that the legislature must be supposed to have meant in the act cited that money which constituted the basis of the general business of the country and was a legal tender for the payment of debts, and that, therefore, there was no authority in the act for the issuance of bonds payable in "gold coin," and they were void for want of authority for their issuance. This, the court said, was a matter of substance involving a departure in a most material feature from the act authorizing bonds to be issued, and rendered them void from the beginning. The Supreme Court of the United States on the contrary, held that "gold coin" was money, and that, therefore, the use of that term in a bond issued under authority to borrow money was not invalid. In deciding the case Chief Justice Fuller, who read the opinion, said that it was only by deciding that these bonds were payable in a particular kind of money of the United States, and that this kind, though money in law had ceased, as the court assumed, to bę money in fact, that the State court was enabled to hold them void for want of power, and if that premise were incorrect the conclusion, whether right or wrong, would not follow. But the court said these bonds were not expressly payable in gold coin, and as the coupons were payable specifically in currency the argument was not unreasonable that the corporation intended the purchasers to expect payment in the money in which the indebtedness was stated to have been contracted; but the agreement to pay the designated sums did not specify any particular kind of money, and the obligation was to pay what the law recognized as money when the payment was to be made. The bonds, were therefore, legally solvable in the money of the United States, whatever its description, and not in any particular kind of money, and it was impossible to hold that they were void because of want of power.

[blocks in formation]

States Circuit Court for the District of Indiana decides, in Copeland v. Browning, 72 Fed. Rep. 5, that the federal courts have no jurisdiction, either original or upon removal from a State court, of a suit instituted to determine the validity of a will, as a preliminary step in determining whether its probate should be granted or denied. This decision is in harmony with Gaines v. Fuentes, 92 U. S. 10; Ellis v. Davis, 109 U. S. 485; Reed v. Reed, 31 Fed. Rep. 49; In re Cilley, 58 Fed. Rep. 977; Oakley v. Taylor, 64 Fed. Rep. 245.

ATTACHMENT IN ACTIONS EX DELICTO VALIDITY.-Rev. Stat. Texas, arts. 152, 153, require the affidavit for an attachment to state the amount of the demand. The statute prescribes 11 grounds for attachment; and in every instance in which the cause of action is mentioned, it is denominated a "debt;" and in every instance in which the person to be injured by the action of defendant is mentioned he is called a "creditor." It was held by the Supreme Court of Texas, in El Paso Nat. Bank v. Fuchs, 34 S. W. Rep. 206, reversing the court of appeals, that no attachment can issue on any cause of action founded on a tort, and it is immaterial that the same measure of damages may be applied as for breach of a contract. The following statement of the law is from the opin

ion of the court:

The question to be determined, upon this statute, is, what is the meaning of the words "debt" and "creditor," as therein used? The rule of construction to be applied is by Mr. Sutherland clearly stated, thus: "The remedy by attachment is special and extraordinary, and the statutory provisions for it must be strictly construed, and cannot have force in cases not plainly within its terms." Suth. St. Const. § 393; Elliott v. Jackson, 3 Wis. 649. In the case of Barber v. City of East Dallas, 83 Tex. 150, 18 S. W. Rep. 438, the court defines the word "debt" as follows: "In common parlance, the word 'debt' is sometimes used to denote any kind of a just demand, and has been differently defined, owing to the subject-matter of the statutes in which it has been used; and while, ordinarily, it imports a sum of money arising upon a contract, express or implied, in its more general sense it means that which one person is bound to pay or to perform to another. 5 Am. & Eng. Enc. Law, 175." Mr. Drake, in his work on Attachments (section 12), says: "Who may be regarded as a creditor may be often a debatable question. A creditor is defined by a recent writer to be one who has a right to require of another the fulfillment of a contract or obligation. Another writer considers a creditor to be one who gives or has given credit to another, one who trusts another, one to whom a debt is due; in a larger sense, one to whom any obligation is due. Webster defines

the word thus: 'A person to whom a sum of money or other thing is due by obligation, promise, or in law.' The word is susceptible of latitudinous construction, and it is not, perhaps, as important, here, to arrive at its general meaning, as to ascertain the views of it, and of what constitutes an indebtedness, which has received judicial sanction in connection with resort to attachment." He then proceeds to discuss the cases arising in the courts of several States, from the general tenor of which decisions it may be concluded that the debt which will support an attachment is one arising out of a contract, either express or implied by law. 5 Am. & Eng. Enc. Law, 143; Elliott v. Jackson, 3 Wis. 649. "In the absence of statutory provisions allowing attachment to issue in actions founded on tort, it has been uniformly held that, in such actions, it will not lie." Drake Attachm. §10; Hochstadler v. Sam, 73 Tex. 315, 11 S. W. Rep. 408; Greiner v. Prendergast, 3 La. Ann. 376; Bank v. Turnley, 1 Miles, 312.

[blocks in formation]

AGENT. The Supreme Court of California decides, in People v. Bendit, that when one without authority executes a receipt for money, purporting on its face to be executed by him as agent for the person whose name he signs, he is not guilty of forgery. The court says in part:

We have been referred to no authorities to the point that the signing of another's name as his agent is forgery, while there is a multitude of authorities to the contrary in text-books and adjudicated cases. "If a man accept or indorse a bill of exchange in the name of another, without his authority, it is a forgery. But if he sign it with his own name, per procuration of the party whom he intends to represent, it is no forgery; it is no false making of the instrument, but merely a false assumption of authority." 2 Archb. Cr. Prac. p. 819. The doctrine is fully discussed, and the views herein before stated declared, in Reg. v. White, 2 Car. & K. 404. In that case the defendant brought a bill to a banker as from Tomlinson. The bill was not indorsed, but the defendant said he would indorse it. The banker wrote, "per procuration Tomlinson," beneath which the defendant signed his own name. It was held that this false assumption of authority was not forgery, as there was no false making. It has frequently been held that "the false instrument should carry on the face of it the semblance of that for which it is counterfeited," although it is not necessary that the semblance should be exact. 2 Archb. Cr. Prac. 866. This rule illustrates the nature of forgery. How, in the case at bar, could there be any question about "semblance?"

The American authorities are as pronounced on the subject as the English. In re Heilbonn, 1 Parker, Cr. R. 434, the court, after having referred to other cases, say: "It might not be necessary to refer to these authorities, for it is the essence of forgery that one signs the name of another to pass it off at the signature or counterfeit of that other. This cannot be when the party openly, and on the face of the paper, declares that he signs for that other. There he does not counterfeit the name of the other, nor attempt to pass the signature as the signature of that other. The offense belongs to an entirely different class of crimes." In Mann v. People, 15 Hun, 155, the court, in an elabor.

ate opinion, in which the authorities and the arguments for an opposite view are fully reviewed and discussed, holds that, "where one executes and issues an instrument purporting on its face to be executed by him as the agent of a principal therein named, he is not guilty of forgery, either at common law, or under the statutes of this State, even though he has in fact no authority for such principal to execute the same." (We quote from the syllabus, which is a correct condensation of the opinion.) In Com. v. Baldwin, 11 Gray, 199, the Supreme Judicial Court of Massachusetts say: "It is not, says Sergeant Hawkins, the bare writing of an instrument in another's name without the privity, but the giving it a false appear. ance of having been executed by him, which makes a man guilty of forgery. If the defendant had written upon the note, 'Whilliam Schouler, by his agent, Henry W. Baldwin,' the act, plainly, would not have been forgery. The party taking the note knows it is not the personal act of Schouler. He does not rely upon the signature. He is not decived by the semblance of his signature. He relies solely upon the averred agency and authority of the defendant to bind Schouler. So, in the case before us, the note was executed in the presence of the promisee. He knew it was not Schouler's signature." In Com. v. Foster, 114 Mass. 311, the court say: "The falsity of the instrument consists in its purporting to be the note of some party other than the one actually making the signature. The falsity of the act consists in the intent that it shall pass as the note of some other party." In State v. Young, 46 N. H. 266, the supreme court of that State say: "To forge or counterfeit is to falsely make; and an alteration of a writing must be falsely made, to make it forgery at common law, or by our statute. The term 'falsely,' as applied to making or altering a writing in order to make it forgery, has reference, not to the contents or tenor of the writing, or to the fact stated in the writing, because a writing containing a true statement may be forged or counterfeited as well as any other, but it implies that the paper or writing is false, not genuine, fictitious, not a true writing, without regard to the truth or falsehood of the statement it contains, a writing which is the counterfeit of something which is or has been a genuine writing, or one which purports to be a genuine writing or instrument when it is not." In State v. Wilson, 28 Minn. 52, 9 N. W. Rep. 28, the court referring approvingly to Mann v. People, supra, say: "The court decided that this did not constitute forgery, and held, in substance, that, when one executes and issues an instrument purporting on its face to be executed by him as agent of a principal therein name", he is not guilty of forgery, although he has in fact no authority from such principal to execute or issue the same. In fact, we found no authority to the contrary, and the text-writers uniformly lay down or approve of the same rule." There are numerous other authorities to the same point, but further citation is unnecessary. Of course, the averment in the information that the appellant uttered and passed the said instrument "as true and genuine" is also, under the above views, unsupported by the evidence.

It is contended that the definition of "forgery" in section 470 of the Penal Code makes the crime different from forgery at common law, but, with respect to the question here under discussion, there is no such difference. At common law there were frequent embarrassing questions as to what kinds of writings were the subjects of forgery, while our Code, to avoid those questions, enumerates a very large number of writings as subjects of forgery. But, as to what con

stitutes forgery of instruments which are subjects of forgery, the definitions at common law and by our Code are the same. "Forgery, at common law, is the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability." 2 Bish. Cr. Law (8th ed.), § 523. In the notes to the section of Bishop just quoted, many other definitions are given, and it will be noticed that the leading descriptive words are "false making," or altering. In our Code the words are, "every person who with intent to defraud another, falsely makes, alters," etc., any of the written instruments enumer ated. The definition is therefore essentially the same in both instances, and it is the same in the statutes of all the other States to which our attention has been called. But the meaning of the words "false making," when applied to forgery, is that herein before stated. The broad and well-established distinction above set forth cannot be ignored by courts or jurors, even when, in their opinion, a more severe punishment should be imposed on a defendant than the one which the law prescribes for the offense of which he is guilty.

RIGHT TO PUBLISH LETTERS.

There has been great diversity of opinion in the different States as to whether letters

could, by the recipient thereof, or any other person, be published or made public contrary to the wishes of the writer, and when and under what circumstances they could be so treated. The courts have from time to time

held both pro and con, it being a very difficult question to determine in some cases the respective rights of author and recipient of letters. Of course there can be no settled law laid down by which all cases of this nature should be governed, but there seems to be, and undoubtedly is, a settled principle generally recognized as governing this important subject. And the law throughout the different States is now well settled, and the weight of authority is to the effect that letters cannot be published, except by consent of the writer, his executors or administrators; but there is an exception to this rule when the receiver may publish letters notwithstanding, viz., when it is shown to be necessary to the vindication of his own rights or conduct against unjust claims or imputations, or for purposes of protection or of support of character, or when the purposes of justice, civil or criminal, require the publication. There seems to be grave doubt as to whether the courts of the United States, un

1 2nd Ambler, R., p. 737.

der the act of congress amending the several acts respecting copyrights passed Feb. 3, 1831, have power to restrain by injunction the publication of literary or private letters contrary to the wishes of the receiver, but it is to some extent conceded that the ninth section of the aforesaid copyright act protects the author's right to his manuscript. In the 5th McLean (U. S.), p. 32, it is stated that an author has a common law right in his manuscript, and is entitled to an injunction to restrain the publication of it. The jurisdiction, however, which under the act of congress the federal courts may have acquired has not impaired or affected the original jurisdiction of the State courts.

It is extremely difficult to say what letters are or are not private or literary compositions. In one sense all letters are literary, for they consist of the thoughts and language of the writer reduced to written characters and show his composition. The writer of letters, whether they are literary compositions or familiar letters, or letters of business, possesses the sole and exclusive right of publishing the same, and without his consent they cannot be published either by the person to whom they are addressed or any other.2 Letters being entirely in the nature of personal property, the title to which naturally arises through possession, it would seem that with this element and that of the writer voluntarily consigning the letter to anyone, that there would be for all purposes an absolute and indisputable title in the recipient, and that the writer would have no latent rights of any nature whatsoever; but no, the law says the author has an inchoate right as to how the contents of such letters shall be used. The receiver of a letter has, at most, only a joint property with the writer, and the possession does not give him a license to publish. An abridgment, in which there is a substantial compensation of the materials of the original work, and which requires intellectual labor and judgment, does not constitute a piracy of copyright, but an abridgment consisting of extracts of the essential or most valuable portions of the original work is piracy. An author of letters or papers of whatever kind, whether they be

3

2 See 11th How., 49-50; How. Pr., 201, and 4th Duer, 379.

3 2d Atk. 342.

[blocks in formation]

1. The delivery of goods by a seller to a carrier designated in the contract of sale, at the place of delivery designated, consigned to the buyer without reservation, is a delivery to the buyer, though the contract provided for payment in cash, and for examination by the buyer before payment; the right of the seller to require payment before the passing of the title to the goods being waived by such consignment.

2. The transfer of a bill of lading by delivery without indorsement carries with it all the right of the transferror in the goods represented by it, and extrinsic evidence is admissible to show what such interest is. The fact that a State statute provides for the transfer of bills of lading by indorsement does not restrict their transfer to such method.

3. Where a contract for sale of goods shows that they were to be delivered at the termination of a carrier's lien, their delivery by the seller to the carrier, though consigned to the buyer, will not pass the title, and a transfer of the bill of lading by the seller will vest the transferee with the right of possession of the goods; but where delivery to the carrier operates, under the contract of sale, to pass title to the buyer, the retention and transfer of the bill of lading by the seller will carry no right in the goods, though, by statute, the carrier is forbidden to deliver the goods without the presentation of the bill of lading.

4. The equitable rule as to the marshaling of secu rities between lienholders has no application to a controversy between one claiming the right to possession of property by transfer of a bill of lading, and one who has levied an attachment thereon as the property of the transferror of the bill of lading, where the validity of the attachment lien depends on the invalidity of the transfer.

BURGESS, J.: This is an action by attachment. Under the writ, 619 barrels of sugar were seized as the property of defendants. The sugar was sold under order of the court, and the proceeds arising from said sale paid into court. The Union National Bank of New Orleans interpleaded,

claiming the fund. The controversy is between the plaintiffs, as attaching creditors, who seized the sugar, by attachment, as the property of V. & A. Meyer & Co., while on the vessel upon which it was shipped, and the interpleader, who claims the fund under assignment of the drafts and transfer of the bills of lading for the sugar. The trial was had before the court, who found for the interpleader, and plaintiffs appealed.

No question is made with respect to the pleadings, or the admission or exclusion of evidence. The facts are about as follows:

Defendants, who were merchants at the City of New Orleans, having, through their broker, theretofore sold fourteen different lots of sugar to as many different purchasers in the City of St. Louis on the 30th day of November, 1890, shipped it to them, in compliance with their contracts. The carrier issued to defendants bills of lading, in which they were named as the shippers, and the several purchasers named as consignees. Defendants then drew a separate draft on each of the consignees for the value of the sugar shipped to them. The drafts were drawn payable to defendants' order, and were indorsed by them. To each draft was attached the corresponding bill of lading, and on the 1st of December, 1890, all the drafts, with the bills of lading attached, were transferred and delivered to the interpleader, for their full face value and the full aggregate value of all the sugar, being about $10.000. On presentation of the drafts to the respective drawees, payment was refused, and they were not paid. The drafts are in the ordinary form of bills of exchange. They are all dated at New Orleans, December 1, 1890; are drawn by V. & A. Meyer & Co. The bills of lading were not indorsed. The bills of lading are dated at Cora Plantation, La., November 30, 1890, and it is recited on the face of each of them that the shipment is for account of V. & A. Meyer & Co. They are all in the following form:

"Received in good order from Cora Plantation, on board the steamer City of St. Louis,

to be delivered without delay, unless unavoidably prevented, on the levee at St. Louis, unto consignee as below. * Freight at 15c. per

[blocks in formation]

There are fourteen of the bills of lading, each naming as consignee one of the concerns against whom the drafts were drawn. Along with each of the bills of lading is a certificate dated at Cora Plantation November 29, 1890, showing the weight of each barrel, and the gross weight and net weight of each lot. There was also pinned to each of the bills of lading a slip of paper on which were written the words, "Allow parties to have B. L. and examine goods." It appears that,

on the 1st of December, Adolph Meyer, a member of the firm of V. & A. Meyer & Co., took these fourteen drafts, with the bills of lading and other papers attached, into the Union National Bank, and requested a discount; that Chalaron, the cashier, accepted them at the current rate of discount for St. Louis exchange (one-fourth of 1 per cent., or $24.29 in the aggregate), and caused the net proceeds, $9,719.91, to be placed to the credit of Meyer & Co. in their account current; that the bank paid checks of Meyer & Co. on their account current to the amount that day of $39,772.21, the next day $70,277.27, and each succeeding day for greater or less sums; that from the day when the fourteen drafts above mentioned were delivered to the bank, up to and including the day when they were dishonored at St. Louis and the Union National Bank was notified, the defendants had on deposit in the bank, and to their credit, more than enough money to pay all these drafts; that after that time there were, up to December 25th of that year, daily balances to defendants' credit, on most days more than sufficient, though on six of those days not sufficient, to pay all the drafts; when the deposition of Mr. Chalaron was taken, on February 5, 1891, there was still more than enough money on deposit to the credit of the defendants to pay all the drafts; that this discount was made in the usual and ordinary course of business, and on the faith of the bills of lading and certificates of weight, and not on the personal credit of Meyer & Co.; that the transaction was an out and out purchase; and that the drafts were not taken for collection for account of Meyer & Co. It also appears that the drafts were received by the St. Louis National Bank from the Union National Bank, and, with the other papers attached, presented to the several drawees for payment, and payment refused.

The contracts, in pursuance of which the shipments were made, are all dated at St. Louis, and call for "Y. C." (yellow clarified). Their terms are as follows: (1) F. Mitchell & Bro. "Price 5 cents delivered on the levee here; to be drawn for, bill of lading attached; sugar to be received before payment of draft." (2) Wulfing, Dieckriede & Co.: "Price 5 cents, delivered here; to be drawn for, subject to examination of sugar before payment." (3) Adolph Moll: "Price 5 1-8, delivered here, on the levee, by next Saturday's boat from New Orleans." (4) O. H. Peckham Candy Company: "Price 5 cents, delivered here; to be drawn for. bill of lading attached; bill of lading to be surrendered by bank, so sugar may be received in the usual way." (5) Goebel, Wetterau & Co.: "Price 4 7-8, sold at plantation; to be shipped Anchor Line, and insured; to be drawn for, bill of lading attached; sugar to be examined and received in the usual way before payment." (6) Dodge & Seward: "Price 4 7-8, f. o. b. plantation; ship Anchor Line, and insure; to be drawn for, bill of lading attached; subject to approval before payment." (7) Alkire Grocery Company: "Price 4 7-8, f. o. b. plantation; ship

Anchor Line, and insure; to be drawn for, bill of lading attached; sugar to be accepted before payment of draft." (8) Scudder, Miltenberger, Reinhart & Co.: "Price 4 7-8, f. o. b. plantation; ship Anchor Line; no insurance; to be drawn for, bill of lading attached; sugar to be accepted before payment." (9) Gildehaus, Wulfing & Co.: "Price 4 7-8, f. o. b. plantation; ship Anchor Line, and insure; to be drawn for, subject to approval of goods before payment." (10) Greely-Burnham Grocer Company: "Price 4 7-8, sold at plantation; ship Anchor Line, and insure; to be drawn for, bill of lading attached; bill of lading to be surrendered by bank, so the sugar may be received in the usual way." (11) J. H. Kaiser & Co.: The same as in No. 10. (12) Adam Roth Grocery Company: The same as in No. 10. (13) Goddard-Peck Grocery Company: "Price 4 7-8, f. o. b. plantation; ship Anchor Line; no insurance; cash on receipt of sugar." (14) Fink & Nasse: "4 7-8 per pound, f. o. b. 12 1-2 cents freight to St. Louis; cash on arrival.” It also appears that some of the sugars were sold subject to approval by the purchasers before payment.

Plaintiffs gave in evidence sections 2482, 2485, Voorhies' Rev. St. La. 1876, which read as follows:

"Sec. 2482. Cotton press receipts given for any goods, wares, merchandise, grain, flour or other produce or commodity stored or deposited with any cotton press, wharfinger or other person, or any bill of lading given by any forwarder, boat, vessel, railroad, transportation or transfer company, may be transferred by endorsement thereon, and any person to whom the same may be transferred shall be deemed and taken to be the owner of the goods, wares, merchandise, grain, flour or other produce or commodity therein specified, so far as to give validity to any pledge, lien or transfer made or created by such person or persons, but no property shall be delivered except on surrender and cancellation of said original receipt or bill of lading with the indorsement of such delivery thereon; in case of partial delivery all cotton press receipts or bills of lading, however, which shall have the words 'Not negotiable' plainly written or stamped on the face thereof, shall be exempt from the provisions of this section."

"Sec. 2485. All receipts, bills of lading, vouchers or other documents, issued by any cotton press owner or lessee, wharfinger, forwarder or other person, boat, vessel, railroad, transportation or transfer company, as by this act provided, shall be negotiable by indorsement in blank or by special indorsement in the same manner and to the same extent as bills of exchange and promissory notes now are."

It further appears that the defendants, V. & A. Meyer & Co., were, and for some time before these transactions had been, and thereafter remained, depositors in the Union National Bank, and that one of the firm, Adolph Meyer, who

« PreviousContinue »