50 CIRCUIT COURT. [June, Pullan vs. Cincinnati and Chicago R. R. Co. irreparable injury. I suppose that in no case of a mortgage ought a court of chancery to appoint a receiver, if the mortgaged property is of such value as to render it clear that, on a foreclosure and sale, the debt could all be made. In the present case, the mortgaged property. would probably not bring so much on sale. I will therefore appoint a receiver, whose duty it shall be to examine the books and affairs of the road, to ascertain its net earnings monthly, to receive one-fourth of the net earnings of the road from Richmond to Logansport from the company every month, and to pay it into this court for the use of the bondholders. And I order that the company, its officers and agents, give to such receiver all proper facilities for examining the books and papers of the company touching the gross and net incomes and earnings of said part of said road; and that the company, by their proper officer or officers, do under oath render full and fair monthly statements to such receiver of the gross and net income and earnings of said part of said road, and pay over to him every month said fourth part of said net proceeds. For opinions in this case consult Bill vs. New Albany, &c., R. R. Co., Vol. 2 of this Series, 390, and Pullan, Trustee, &c., vs. Cincinnati & Chicago AirLine R. R. Co., et al, May Term, 1873, to appear in subsequent volume of this Series. Opinion by DRUMMOND, J. See further, that a corporation can only exercise such powers as are conferred or such as are necessary to carry into effect those expressly delegated. City of Chicago vs. Rumpff, 45 Illinois, 90. A railroad's deed of trust operates as a mortgage. Coe vs. Johnson, 18 Indiana, 218. That a corporation has no power to mortgage its franchise, without expres legislative authority, see Coe vs. Columbus, Piqua and Indiana R. R. Co., 10 Ohio State, 372; Commonwealth vs. Smith, 10 Allen (Mass.) 448. Generally, assignees or purchasers pendente lite need not be made parties, and are bound by the proceedings. 1 Daniell's Chancery Pleading and Practice, 280, and note 7, where there is a large collection of authorities. For a collection of authorities on the proposition that the appointment of a receiver is discretionary with the court, see 2 Daniell's Chancery Pleading and Practice, 1715, and notes et seq.—[Reporter. Northwestern Car Co. vs. Hopkins. NORTHWESTERN CAR COMPANY vs. JOHN W. HOPKINS et al. CIRCUIT COURT.-NORTHERN DISTRICT OF ILLINOIS.-OCTOBER TERM, 1865. IN ADMIRALTY. PETITION FOR REVIEW-WHEN MAY BE FILED.-A petition for review, filed after the term at which the decree was rendered, and after it had been executed, will be entertained by a court of admiralty, when actual fraud is charged, and the libellant is without fault, and would otherwise be without remedy. This was a petition for review, charging actual fraud, and setting up that the libelant was without fault, and would be without remedy unless his petition were allowed. Respondent demurred on the ground that the petition was not filed until after the term at which the decree complained of was rendered, and that the decree had been already executed. Scammon, McCagg & Fuller, for petitioner. Robert Rae and John A. Jameson, for respondent. DAVIS, J.-This petition presents this question: Has a court of admiralty a right to entertain a petition for review after the term has passed, and after the decree has been executed? The right is denied, and chiefly on the ground of a want of precedent. The authority of precedent is very strong, but not always conclusive. I can perceive no good reason why a court of admiralty,in a proper case,should not exercise the power of reviewing its own proceedings. It may be necessary for the proper administration of justice, and especially in cases Northwestern Car Co. vs. Hopkins. where important rights are adjudicated without personal notice, which is permitted under our rules. The court could not entertain a petition on the grounds of mere oversight or neglect. But where actual fraud is charged, and the petitioner is without fault and without remedy, it would be a denial of justice to dismiss it. Lord Stowell and Judges Story and Sprague all thought that there were cases in which petitions for review should be retained, although conceding the absence of precedent. Judge Story said that "where, by after-acquired evidence, it were plain that the merits had not been considered, it was right to entertain a bill for review."" The remedy by petition for review, in the case before the court, is a proper one, and the demurrer will be overruled. The cases referred to as containing the opinions of Lord Stowell and Justices Story and Sprague, are: The Fortitudo, 2 Dodson, 58; The Steamboat New England, 3 Sumner, 495, and Janvrin vs. Smith, 1 Sprague, 13,-in which cases it was held that the power of granting a review by libel in the nature of a bill of review is not limited to the term at which the original decree was rendered. In the case of The Martha, however, 1 Blatchford & Howland, 151, Judge Betts ruled that the court had no right to reverse a decree, subsequent to the term at which it was entered, and that a rehearing could not be granted except with the free consent of all parties to be affected by it. Consult also The Monarch Bell, 1 Wm. Robinson, 21; 2 Conkling's U. S. Admiralty, 360 367; The Enterprise, 2 Curtis C. C. R., 317.—[Reporter. 'The Steamboat New England, 3 Sumner, 506. Mott vs. Wright. JOHN MOTT vs. WILLIAMSON W. WRIGHT. CIRCUIT COURT.-DISTRICT OF INDIANA.-NOVEMBER 1. LAW MERCHANT NOT BINDING IN INDIANA-RIGHTS OF INDORSEE.— By the law of Indiana, ordinary promissory notes are not governed by the law merchant. But, as a general rule, the indorsee, having first used due diligence by suit to collect such notes from the maker, has his recourse on the indorser. 2. INDORSEMENT GOVERNED BY Lex Loci.-The indorsement of a note is a new, distinct contract; and such contract is governed by the law of the place where it is made, without regard to the law of the place where the note was made. 3. LEX LOCI CONTRACTUS-DELIVERY.-The contract of indorsement includes two essential things: the writing itself, and the delivery of it to the indorsee. And if the indorsement is written in one state, and delivered to the assignee in another, the law of the latter state controls the contract. 4. A indorsed notes in Indiana, and sent them by mail to B the indorsee, in New York, where B received them. Held, that the indorsement was governed by the law of New York. Barbour & Howland, for plaintiff. McDonald & Roach, for defendant. MCDONALD, J.-This is an action of assumpsit on ten promissory notes, all dated in May, 1881. Four of them are payable six months after date, and six of them, seven months after date. Their aggregate is $5,219.90. They are all dated at the city of New York, and are made payable at the Bank of North America in that city. These notes were executed by John Wright to the defendant, Williamson W. Wright, and were by him indorsed in blank. Non-assumpsit is pleaded; and the trial of this issue is by agreement, submitted to the court without a jury. Mott vs. Wright. It would be tedious to detail all the testimony. The following is the substance of the evidence: The notes and their indorsements were produced in evidence. For some time before they were made, John W. Wright was largely indebted to Robert Ellis, of New York. The debt evidenced by these notes had been kept afloat by what are called "renewal notes" made to Ellis. Of these, the notes sued on are the last series. To procure them, Ellis sent his agent from New York to the residence of the maker and indorser in Indiana, with the notes then blank, to get them executed and indorsed. John W. Wright being then abroad, the agent called on Williamson W. Wright, the defendant, who, at the agent's request, indorsed the notes. Thereupon, the agent left the notes in this condition with D. D. Pratt, an attorney of Indiana, with the request to him that he should ask the said John W. Wright to sign them and forward them to Ellis, in New York. Pratt did so. John W. Wright thereupon signed the notes in Indiana, and forwarded them by mail to Ellis, in New York. When the notes respectively fell due a demand for payment was properly made, and notices of their non-payment were duly given, according to the law merchant. By the law of Indiana, the indorser of such notes as these is not liable, in consequence of their non-payment and notice thereof, to pay them. Due diligence to collect them from the raker by a suit against him must generally be used in order to fix the liability of the indorser.1 There, such By the laws of New York, it is otherwise. notes are governed by the rules of the law merchant; and the indorser is liable, as on an inland bill. It becomes important, therefore, to ascertain whether the indorsements in question are governed by the laws of Indiana or the laws of New York. According to the evidence, if the Indiana law prevails, the plantiff can not recover, because he 11 G. & H. Stats., 448; Kelsey vs. Ross, 6 Blackford, 536. |