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INDEX.

ADMIRALTY. 1. Under the local law of Louisiana claims for materials and supplies furnished a vessel

in her home port are a lien on the vessel, if recorded in the proper parish. Without such registry they have no privilege or priority over subsequent mortgages recorded by authority of the act of Congress, or claims of later date recorded by authority of

the state law. The John T. Moore, 406. 2. Claims for materials and supplies furnished in the home port, even if duly recorded,

are postponed to maritime liens. 1b. 3. The registry of a mortgage on a vessel to be effectual must be made in the custom

house of her home port. 1b. 4. Where the mortgagee of a mortgage on a vessel, which was recorded in the proper

custom-house, had notice of a prior unrecorded mortgage, his mortgage was postponed

to the unrecorded mortgage. Ib. 5. Where A. had an unrecorded mortgage on a vessel, and B. had a mortgage on the

same vessel of later date, duly recorded under the act of Congress, but had actual notice of the mortgage of A., and C. had a lien by virtue of the registry of his claim under the state law, subsequent in date to the mortgages of both A. and B., but C. had no notice of the mortgage of A., and the claim of either A. or B. was sufficient to absorb all the proceeds of the sale of the vessel : Held, that said proceeds should

be first applied to the mortgage of A. Ib. 6. The fact that a mortgage on a vessel has not been acknowledged before a notary

public, or other officer authorized to take acknowledgment of deeds, precludes its registry, but does not render it void as against the mortgagor, nor postpone it to the recorded mortgage of a subsequent mortgagee who had notice of such unrecorded

mortgage. 16. 7. The wages of a watchman employed on a vessel while lying-up in port are not a mar

itime lien. Ib. 8. There is no maritime lien for the premium due on a policy of insurance taken on a

vessel by her owners. Ib. 9. Where the vacillation of a sailing vessel in the exhibition of her lights is the cause of

a collision with a steamer, the steamer held not to have been in fault, even though the collision might have been avoided if the steamer had adopted a course different from that pursued. Marshall v. The Adriatic, 353.

BAILOR AND BAILEE. If a seller of merchandise, in order to maintain his lien for its price, refuses to permit

the purchaser to take possession or control of it, he thereby prevents an acceptance and receipt of it by the purchaser within the statute of frauds. Upon an agreement for the sale of merchandise and payment therefor by a satisfactory note, the purchaser examined the merchandise, had it weighed, marked with his initials, and piled up by itself in the seller's warehouse, to be taken away upon payment for it or giving a satisfactory note for its price. The purchaser never complied with these terms, and the seller refused to allow him to take the merchandise away, claiming a lien upon it for its price. After remaining for several months it was destroyed in the warehouse by fire. Held, that there was no such delivery of the merchandise as to constitute the seller a bailee for the purchaser. Safford v. McDonough, 96.

BANKRUPTCY. 1. After a bankrupt had been discharged, a large fund was recovered in a suit against

the United States in the court of claims, by counsel employed by him before his bankruptcy, on a contract that they should carry on the suit to recover the same at their own costs and charges, and have and retain for their compensation one half the amount recovered. The fund so recovered being in possession of the bankrupt court, the bankrupt filed his petition, praying that the share of his said counsel in the fund might be paid to them, that a sufficient sum might be set apart to pay all debts proven against his estate, and also the costs and commissions of the bankruptcy, and that the residue might be paid over to himself; held, that such a petition was one in the ordinary course of a bankrupt proceeding, and was not a bill in equity, nor did the relief prayed for require the filing of a bill in equity; nor was a decree of the bankrupt court, directing the payment to said counsel of their share in the recovery, the allowance of a claim against the bankrupt estate. The proper method, therefore, to reverse a decree made on such a petition was not by appeal, but by petition, addressed

to the supervisory jurisdiction of the circuit court. Maybin v. Raymond, 21. 2. The common law on the subject of champerty and maintenance has not been gener

ally adopted in this country, the reasons on which the law was founded not existing here. Therefore a contract such as that mentioned in the first head-note, made by

a party with his counsel, is not an unlawful, but is a valid and binding contract. Ib. 3. Upon the facts stated in the first head-note, the attorneys who recovered the judg

ment were entitled to one half the amount recovered, notwithstanding the subsequent bankruptcy of the party with whom they contracted, and notwithstanding the recov

ery was subsequent to the bankruptcy. Ib. 4. A paper writing purporting to be the discharge of a bankrupt, without date, signed

by the register without application therefor by the assignee, and which by inadvertence has found its way among the records of the court, does not put an end to the powers of the assignee, or terminate the bankruptcy proceedings; it is no part of the

record, and may be ordered by the court to be stricken from the files. Ib. 5. The discharge of a bankrupt is not such an adjudication of the fact that he has sur

rendered all his property for the benefit of his creditors as to bar the right of his assignee to recover property discovered after the discharge, and which the bankrupt had

failed to place upon the schedule. Ib. 6. Where an assignee in bankruptcy more than two years after his appointment is sub

stituted for the bankrupt as plaintiff in a suit pending in the bankrupt's name, and recovers a sum of money in the suit, the bankrupt cannot claim from the assignee the money so recovered, on the ground that the cause of action in favor of the latter was

barred at the time he was substituted as plaintiff in the suit. Ib. 7. Where authority was obtained from the bankrupt court upon the application of the

assignee to make the contract mentioned in the first head-note for the prosecution of a claim due the bankrupt estate, the court being kept in ignorance of facts which, if known to it, would surely have induced it to withhold such authority, the contract is not binding on the court or on the bankrupt estate, especially when the attorneys with whom the contract was made knew that the assignee had not communicated such facts

to the court. Ib. 8. Under the Bankrupt Act of 1867, the assignee might sue in the state courts to re

cover the assets of the bankrupt, no exclusive jurisdiction being given to the courts of the United States. Whether such exclusive jurisdiction is given by the Revised Statutes, quære. Claflin v. Houseman, 51.

BILLS AND NOTES. 1. A building association was organized in August, 1871, under the general incorporadishonored and protested, and notice given by the notary to the said indorsers, and payment duly demanded of them. Suit was brought on the note by the indorsees against the indorsers, who contended that they were not liable by reason of their indorsement, because the instrument sued on was a single bill. Held, That the note was negotiable, and that by the indorsement thereof in the ordinary way, the indorsers became liable. That the nature of the transaction itself, the objects and purposes to be subserved by the issue of the note, as well as its form, indicated that the parties must have understood, that it would be so accepted and dealt with by the commercial community. That the printed representation of the seal, if it be conceded to be a sufficient seal, was not printed on the note to restrain its negotiability, or to change it into a specialty, but rather as a mark of genuineness. That the note in no manner depended upon the seal for its validity, but derived its authenticity from

tion law of a state, and by the 9th and 11th articles of its association it was provided that its board might issue promissory notes on mortgages only, and that such notes should always be drawn to the order of the mortgagor, who should in all cases indorse the note thus drawn. The president, secretary, treasurer, and three directors were authorized to sign all promissory notes issued by the association. Under the authority of these articles the association issued its note to the appellees instead of money, for which a mortgage was given. The note was strictly in form a promissory note, payable to the order of the appellees. It was drawn at sixty days' time, and payable at a certain named bank; and was signed by the officers designated in the articles of association to execute promissory notes. In one corner of the face of the note there was the type or emblem of what was alleged to be the seal of the corporation; this alleged seal consisted simply of an emblem or symbol printed by the printer at the time when the printed blank' note was struck. The note was indorsed by the payees, and by them negotiated, and at maturity was duly presented for payment, and was writing made with its holder at the time of his indorsement, that he shall not be held liable thereon, where the paper has not afterwards been put into circulation, but is

the signatures of the officers authorized to execute it. Jackson v. Myers, 13. 2. A holder of negotiable paper, who takes it before maturity for a valuable considera

tion, in the usual course of trade, without knowledge of facts which impeach its validity between antecedent parties, holds it by a good title; but circumstances tending to show bad faith or fraud in taking such paper are admissible in evidence, and the establishment of such bad faith or fraud, whether by direct or circumstantial evidence, subjects the holder of paper so taken to defences existing between antecedent parties.

Johnson v. Way, 58. 3. The payee of a check which has not been accepted by the bank on which it is drawn

cannot inaintain an action upon it against the bank. Until acceptance there is no privity of contract between the payee and the bank. So held where a check of the treasurer of the United States upon a depositing bank had been paid upon an unauthorized indorsement of the name of the payee, and where the action was brought by the true owner of the check. It does not alter the rule that there has been a settlement of accounts between the treasurer and the bank, and the check in question was allowed in the account to the credit of the bank, upon the supposition that it had been properly paid. Such erroneous allowance does not affect the real state of the accounts, but is open to correction when discovered. Payment to a stranger upon an unauthorized indorsement does not operate as an acceptance of the check, so as to authorize an action by the real owner to recover its amount as upon an accepted check.

First National Bank of Washington v. Whitman, 254. 4. An indorser of a promissory note is a competent witness to prove an agreement in

held by the party to whom the indorsement was made. Davis v. Brown, 337. 5. The case of the Bank of United States v. Dunn, reported in 6th Peters, explained and

qualified. 16. 6. An agreement like the one mentioned above and the indorsement, taken together, are

equivalent, so far as the holder of the note is concerned, to an indorsement without

recourse to the indorser. Ib. 7. The omission of indorsers on a series of notes, transferred to the holder in settlement

of their own note held by him, upon an agreement in writing that they should not be held liable on their indorsement, to set up the agreement as a defence to an action against them, brought by the holder on two of the notes, does not preclude them from setting up the agreement in a second action by the holder on others of the same series of notes. The judgment in the original action does not operate as an estoppel against

showing the existence and validity of the agreement in the second action. 16, 8. When a judgment in one action is offered in evidence in a subsequent action between

the same parties upon a different demand, it operates as an estoppel only upon the matter actually at issue and determined in the original action; and such matter, when

not disclosed by the pleadings, must be shown by extrinsic evidence. Ib. 9. Paper that is payable on demand is due at date. The collection of paper that is pay

able on demand, or at a fixed time, is barred by the statute of limitations, at the expiration of the statutory period from the date at which it became payable, whether demand has been made or not. Palmer v. Palmer, 366.

See PRINCIPAL AND SURETY.

BUILDING ASSOCIATION.

See Bills And Notes, 1.

CHECK.
See Bills And Notes, 3.

COMMON CARRIER. 1. A common carrier is one that undertakes for hire or reward to carry, or cause to be

carried, goods for all persons indifferently who may choose to employ him, from one

place to another. United States Express Co. v. Backman, 328. 2. An express company, that receives and agrees to transport goods from one designated

place to another designated place, for a compensation, in the ordinary means of conveyance, is a common carrier, although not the owner, and having no interest in the

conveyance by which the goods are transported. Ib. 3. A common carrier is liable for the value of the goods lost through its negligence, not

withstanding the bill of lading provides that the carrier shall not be liable beyond an amount named therein, when it is understood by the parties that the sum so agreed on is less than the value of the goods. Such an agreement can at most cover a loss arising from some cause other than the negligence or default of the carrier or his servants, and the rule of damages is the same, although less is charged and paid for the

transportation than when the exempting clause is omitted. 1b. 4. In an action on the ground of negligence against a common carrier upon a bill of

lading containing an exemption from liability from loss by fire, the burden of proof is on the carrier to show that the loss occurred within the terms of the exemption, and

that the loss occurred without fault on his part. 1b. 5. A common carrier is liable for loss or injury caused by delay resulting from the refusal

of its employees to do duty; but is not liable for loss or injury caused by delay resulting from the lawless violence of former employees “on a strike.” Pittsburg, Ft.

Wayne & Chicago R. W. Co. v. Hazen, 83. 6. While a common carrier may restrict by contract his liability in matters not inconsist

ent with public policy, he cannot legally contract against liability for the negligence of himself, his agents, or servants. President, &c. of the Bank of Kentucky v. Adams

Express Co. 132. 7. A railroad company which provides a place for, and carries on its trains, messengers

of an express company, becomes the agent of the express company, notwithstanding

the servants of the railroad company are not under the control of the express com8. A common carrier has no power to constitute another person or corporation the agent

of his consignor, or consignee. He can only employ a subordinate agency. Ib. 9. A stipulation that an express company will not be liable for the loss of a package by

ire does not relieve the company from liability for loss by fire caused by the negli

gence of the railroad company transporting its messenger. 15. 10. While the consignor of the express company may sue the railroad company for the

loss of packages by its negligence, such right comes through the contract between the

express and railroad companies. Ib. 11. As to whether a railroad company is liable, as a common carrier, to an express como

pany when the latter by its messenger retains the custody of the package, quære. Ib. 12. A common carrier may show, as an excuse for non-delivery of goods pursuant to his

bill of lading, that he has delivered the goods upon demand to the true owner. Hentz v. The Idaho, 152.

CONSTITUTIONAL LAW. 1. Until Congress makes some regulation touching the liabilities of parties for marine

torts resulting in death of the persons injured, the statute of Indiana giving a right of action to the personal representatives of the deceased, where his death is caused by the wrongful act or omission of another, applies, the tort being committed within the territorial limits of the state; and as thus applied it constitutes no encroachment upon

the commercial power of Congress. Sherlock v. Alling, 38. 2. The action of Congress as to a regulation of commerce or the liability for its infringe

ment is exclusive of state authority; but until some action is taken by Congress, the legislation of a state not directed against commerce or any of its regulations, but relating generally to the rights, duties, and liabilities of citizens, is of obligatory force within its territorial jurisdiction, althought it may indirectly and remotely affect the operations of foreign or inter-state commerce, or persons engaged in such commerce. Іь.

pany. 16.

3. It is within the power of a state to fix by law the maximum of charges for the storage

of grain in warehouses in the state, although the grain is stored in bulk in such manner that the identity of different lots is not preserved. A statute fixing such maximum is not repugnant to any of the provisions of the Constitution of the United States. 1. It does not “ regulate commerce,'' within the meaning of section 8, article 1. 2. It does not give a “ preference : : .. to the ports of one state," within the ineaning of section 9, article 1. 3. It is not contrary to that part of the XIVth Amendinent which provides that no state shall “ deprive any person of life, liberty,

or property, without due process of law. Munn v. The People, 165. 4. Where a corporation is assessed on its gross receipts, under the provisions of "an act

for the assessment and taxation of express and telegraph companies" (S. & S. 769– 771), and pays such assessment to avoid the penalties and disabilities incurred by : refusal to pay, but under protest and after notifying the treasurer that an action would be brought to recover back; such payment is not voluntary, and an action may be maintained to recover back the amount so paid, if the tax is illegal. Western Union

Telegraph Co. v. Mayer, 499. 5. The privilege that a foreign corporation enjoys by legislative consent of exercising

its corporate powers, and of carrying on its business within the state, is not property within the meaning of article 12, section 2, of the state Constitution. The provisions of - an act for the assessment and taxation of express and telegraph companies (S. & S. 769-771), as amended, which requires a foreign telegraph company to pay a tax on its gross receipts for the year next preceding the return for assessment, at a rate equal to that on property, and prohibits any person from acting as agent, or transacting any business for such company that is in default of payment, are, in effect, a charge for the privilege of exercising its franchises and powers within the state, graduated according to the amount of receipts, not in conflict with any of the

limitations on the power of taxation vested in the general assembly. lb. 6. A state has power to control the rates of fare and freight charged by a common car

rier within its jurisdiction. The doctrine of Munn v. The People, applied. Chicago,

Burlington, go Quincy Railroad Co. v. Cutts, 174. 7. Where a sentence not authorized by law has been imposed upon a prisoner, the court

of appeals can only reverse the judgment; it has no power to impose the proper sentence, or to remand the case to the court of original jurisdiction for that purpose. Where the accused was illegally sentenced and judgment reversed on this ground by the appellate court; held, that the accused could not be again tried for the same offence. McDonald v. The State, 484.

CONSTRUCTION OF STATUTES.

Plaintiff, a guest at defendant's inn, retired without locking the door of his room.

During the night his watch, money, and other property, which had been left upon a chest of drawers near the door, were stolen. By section 1 of 26 & 27 Vict. it is provided that no innkeeper shall be liable to make good any loss of property brought to his inn, except when such property shall have been "stolen, lost, or injured through the wilful act, neglect, or default of such innkeeper, or any servant in his employ." Section 3 of said act requires the innkeeper to exhibit a copy of section 1 in a conspicuous part of the entrance to his inn. Defendant caused a notice purporting to be a copy of section 1 to be placed in the entrance to his inn, but the word “ act omitted. Held: (1) that the innkeeper was not protected by the statute; (2) that the question of negligence was properly left to the jury. Spice v. Bacon, 448.

was

CONTRACT.

1. A contract for the sale and purchase of wheat to be delivered in good faith at a

future time is not void as a " wagering contract;" but when under such an agreement it is understood by the parties that no wheat is to be delivered, but only a payment at the time appointed of the difference between the contract and the market price, it thus

becomes a wagering contract and the law will not enforce it. Rumsey v. Berry, 64. 2. The plaintiffs in good faith, at the request and for the benefit of the defendant, made

an agreement for the sale of wheat to be delivered within a certain time, at the option of the defendant, he to furnish sufficient “ margin" to secure them against loss. The defendant failed to comply with his part of the contract, and a loss ensued. Held, that under such a contract the law will give to the plaintiffs a remedy for their loss. Ib.

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