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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.

MORTON, J. This is an action of contract to recover the price of a quantity of leather, exceeding fifty dollars in value, alleged to have been sold by the plaintiffs to the defendant. There was no memorandum in writing of the contract, and the purchaser did not give anything in earnest to bind the bargain or in part payment.

It appeared on the trial that the defendant on May 17, 1872, went to the plaintiffs' store and agreed to purchase the leather at the price named, to be paid for by a satisfactory note.

On the thirty-first day of the same month, he again went to the plaintiffs' store, examined the leather, had it weighed, marked with the initials of his name, and piled up by itself, to be taken away by him upon giving a satisfactory note for the price, or the payment of the price in money, but not otherwise. He never complied with the terms of the agreement. The plaintiffs refused to allow him to take the leather from their store without such compliance, claiming a lien upon it for the price due. It remained in their store till November 9, 1872, when it was burnt with the store. Upon this evidence the presiding justice of the superior court ruled that the leather had not been so accepted and received by the defendant as to take the contract out of the statute of frauds, and the plaintiff excepted to such ruling.

It should be kept in mind that the question is not whether, if a valid contract of sale upon the terms above named had been proved, the title in the property would have passed to the defendant so that it would be at his risk. In such a case, the title would pass to the purchaser unless there was some agreement to the contrary, but the vendor would have a lien for the price, and could retain possession until its payment. Haskins v. Warren, 115 Mass. 514; Morse v. Sherman, 106 Mass. 430; Townsend v. Hargraves, 118 Mass. 325. But the question is whether the defendant had accepted and received the goods, so as to take the case out of the statute of frauds, and thus complete and make valid the oral contract relied on. Unless there was such acceptance and receipt, there was no

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[No. 3.

valid contract by virtue of which the title to the goods would pass to the defendant. To constitute this, there must be a delivery by the seller, and some unequivocal acts of ownership or control of the goods on the part of the purchaser. Knight v. Mann, 118 Mass. 143, and cases cited. In the case at bar, there was no actual acceptance and receipt of the goods by the defendant. They were never in his possession or control, but remained in the possession and control of the plaintiffs, who refused to allow him to take them, claiming a lien for the price. If they had and asserted a lien as vendors, this is inconsistent with the delivery of possession and control, necessary to constitute an acceptance and receipt by the vendee. In Baldey v. Turner, 2 B. & C. 37, 44, Holroyd, J., says: "Upon a sale of specific goods for a specific price, by parting with the possession the seller parts with his lien. The statute contemplates such a parting with the possession, and therefore, as long as the seller preserves his control over the goods, so as to retain his lien, he prevents the vendee from accepting and receiving them as his own within the meaning of the statute." Benjamin on Sales (Am. ed.), 151, and cases cited; Browne on St. of Frauds, § 317.

It is true there may be cases in which the goods remain in the possession of the vendor, and yet may have been accepted and received by the vendee. But in such cases the vendor holds possession of the goods, not by virtue of his lien as vendor, but under some new contract by which the relations of the parties are changed. Cusack v. Robinson, 1 B. & S. 298, 308; Castle v. Sworder, 6 H. & N. 828; Dodsley v. Varley, 12 A. & E. 632.

In the case at bar, the vendors refused to permit the vendee to take possession or control of the goods, but claimed and asserted their lien as vendors for the price. We are therefore of opinion that the ruling of the superior court was correct. Exceptions overruled.

T. H. Sweetser & B. F. Hayes, for the plaintiffs.
S. A. B. Abbott, for the defendant.

SUPREME COURT COMMISSION OF OHIO.

(To appear in 27 Ohio St.)

FOREIGN JUDGMENT.

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OF THE POWER OF A COURT TO INQUIRE INTO JURISDICTION OF COURT PRONOUNCING SUCH JUDGMENT. ·JUDGMENT OF COURT OF ONE OF CONFEDERATE STATES MADE DURING STATE OF WAR. ATTORNEY AND CLIENT, ETC.

PENNYWIT v. FOOTE.

1. Neither the constitutional provision, that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, nor the act of Congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the court by which a judgment offered in evidence was rendered.

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2. The record of a judgment rendered in another state may be contradicted, as to the facts necessary to give the court jurisdiction; and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist. 3. Such want of jurisdiction may be shown either as to the subject matter, the person, or in proceedings in rem as to the thing.

4. The ordinance of secession of the State of Arkansas, the Constitution adopted March, 1861, and the several steps taken by that state, by which it was attempted to secede from the United States and join the Confederate States, were null and void, being in violation of the Constitution of the United States, and the existing Constitution of the state.

5. The state government founded on such new Constitution, and maintained by armed rebellion, was an insurrectionary and unlawful government, and not the legal representative of the state as one of the United States, and its acts and judicial proceedings in violation of the Constitution of the United States, or in derogation of the rights of its citizens, were null and void.

6. The provision of such Constitution, "Schedule, Sec. 1. That no inconvenience may arise from this change of government, we declare that all writs, actions, prosecutions, judgments, claims, and contracts of individuals and bodies corporate, shall continue as if no change had taken place in the Constitution or government of this state; and all process which may have been issued under the authority of this state previous to this time shall be as valid as if issued after the adoption of this Constitution," did not operate during the war to transfer to the courts of the usurping government the jurisdiction previously acquired by the court under the former state government over persons resident in the adhering states.

7. The circuit courts of that usurped government were a constituent part thereof. Their judicial proceedings, within their military lines and during the war, are not such as are, under art. 4, sec. 1, of the Constitution of the United States and the act of Congress, entitled to full faith and credit.

8. As between parties residing in the State of Arkansas and within the rebel lines, and a citizen of Ohio, resident within the Union lines, between whom the war made intercourse impossible, there could be no jurisdiction in such court, by which the rights of non-residents could be injuriously affected.

9. Neither could such jurisdiction be acquired by the consent or waiver of an attorney practising in said court, who was employed and appeared for the non-resident defendants before the war commenced. His general authority as an attorney, before the war, though not revoked by the clients, did not authorize him to waive any of their rights, nor could such consent or waiver confer on the court jurisdiction over the case, or over the person of defendants.

ERROR to the superior court of Cincinnati.

This was an action brought by the plaintiffs against John T. Foote, impleaded with Sheldon Kellogg, late partners, to recover on a judgment rendered against said Kellogg & Foote, in the circuit court of Crawford County, in the State of Arkansas, on the 16th of November, 1861.

The petition contains an averment that said court was a court of record and general jurisdiction; that the action was commenced in that court in October, 1857, and that at the July term of said court, in 1859, the defendants duly appeared by their attorney and filed their plea to the action, on which such proceedings were had; that at the November term of said court, in 1861, a judgment was rendered for plaintiffs for $960 damages, and for costs.

To this petition John T. Foote answered (Kellogg not being served) that the pretended judgment was rendered in the State of Arkansas, whose people, and the so-called government of the state, were at the time, and for a long time had been, in armed rebellion against the authority and government of the United States, and by a pretended court, acting under the pretended authority of a so-called government, which

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was in rebellion, and engaged in making war upon the United States, wherefore it is claimed there is not any record of such a judgment.

To this answer a demurrer was filed, and upon the question thus raised the case was reserved for decision of the court in general term. This demurrer was sustained, and cause remanded to special term, where the following amended answer was filed:

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"The defendant, John T. Foote, for answer to the petition of the plaintiffs, says that on the twenty-sixth (26th) day of October (1857), eighteen hundred and fifty-seven, he, the said defendant, was a citizen and resident of the State of Ohio, and had before been, and up to the month of June (1863), eighteen hundred and sixty-three, continued to be a citizen and resident of said state; that in said month of June, 1863, he removed his residence to the State of New York, of which state he continued to be a citizen and resident for the three (3) years next following the month of June, 1863; that he then, in the year 1866, removed to the State of New Jersey, of which last named state he has ever since continued to be, and now is, a citizen and resident. Defendant further says that the circuit court of Crawford County, in the State of Arkansas, was, on the 26th day of October, 1857, a court of the State of Arkansas, under the government and jurisdiction of the United States of America, and in peaceable relations therewith; and he, the said defendant, then had both in law and in fact all the privileges and immunities of a citizen of the United States, and of the State of Arkansas, in prosecuting and defending actions at law in said court; and as such citizen of the United States he employed counsel and appeared in said case, for the purpose of setting up and maintaining a just and good defence which he had to said action, as shown by the proceedings therein.

"The said defendant further states that afterward, and prior to the rebellion hereinafter stated, and prior to the sixteenth (16th) day of November, eighteen hundred and sixty-one (1861), the persons and bodies of persons holding the chief executive and the legislative offices in the State of Arkansas, combining and confederating with the persons and bodies of persons holding the chief executive and the legislative offices in the States of South Carolina, Georgia, Florida, Alabama, Louisiana, Texas, North Carolina, Tennessee, and Virginia, such persons being all the persons holding chief executive offices and a large majority of all the persons constituting legislative bodies, or any, in each and all said states, including the said State of Arkansas, rebelled against the authority of the United States of America; and by means of a pretended confederate government, known and called the Confederate States of America, levied and waged a war against the United States of America, which said war was raging and continued to rage before and after the said sixteenth (16th) day of November (1861), eighteen hundred and sixty-one.

"And the defendant further avers that the residents of the said State of Arkansas, on, before, and after the said 16th day of November, 1861, including the pretended judges and officers of said circuit court of Crawford County, the said plaintiffs, and the said attorney who had been employed by this defendant, became and were the enemies of the United States, engaged in open rebellion and war against the United States. And the defendant avers that the pretended judge and officers of the said

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circuit court were not, on said 16th of November, 1861, acting, or assuming to act, under the authority and jurisdiction of the United States of America, or under the authority of any government existing or established in the said State of Arkansas connected with the government of the United States of America; but under a usurped and illegal government of the said State of Arkansas, and under the said usurped and illegal government known and called the Confederate States of America. And the defendant avers that the pretended judge of the said circuit court of Crawford County, who rendered the said pretended judgment of said court (so-called) on the said 16th day of November, 1861, against the defendant, was not, on said 16th day of November, 1861, and never had been, a judge of the said State of Arkansas, deriving authority from any government of said state as one of the United States of America; but was a person acting and assuming to act under authority derived from the said usurped and illegal governments of the said State of Arkansas, and the said Confederate States of America.

"And the said defendant further avers that on and before the said sixteenth (16th) day of November, 1861, and for a long time thereafter, in the territory between the State of Ohio (of which state defendant was a citizen and resident, until June, 1863, as herein above stated) and in the territory between the States of New York and New Jersey (of which states defendant was subsequently a citizen and resident as herein aforesaid), and the said State of Arkansas, the armies of the United States of America and the armies of the said usurped illegal government of the Confederate States of America were arrayed against each other, and lines were established and maintained, which he, the said defendant, was not at liberty to pass; and communication was cut off and rendered impracticable between the said States of Ohio, New York, and New Jersey, and the citizens thereof, and the said State of Arkansas and the people and inhabitants thereof; all which was well known to the said plaintiffs and to the said pretended judge and officers of the said pretended court. And the said defendant avers that on and before the said 16th day of November, 1861, under an act of Congress of the United States, for that purpose enacted, all commercial intercourse between the citizens of said States of Ohio, New York, and New Jersey, and the residents of the said State of Arkansas, was by proclamation of the President of the United States, prohibited.

"And the said defendant avers that on the said 16th day of November, 1861, he, the said defendant, had not within the said State of Arkansas the free and peaceable exercise of the privileges and immunities of a citizen of the United States, or of the State of Arkansas, as one of the United States of America; but was illegally and forcibly deprived thereof by the acts of the said plaintiffs and the judge and officers of the said pretended court, and others combining and confederating with them, as hereinbefore set forth. And the said defendant insists that said pretended judgment was and is fraudulent and void."

To this was the following reply:

"The plaintiffs, for reply to the amended answer of the defendants, say that the circuit court of Crawford County, in the State of Arkansas, in and by which the said judgment in the petition mentioned was rendered,

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