Page images

would not be whether the other contracting party to show comity to that extent. The case of Cammel trusted Beatson because he supposed him to be sole v. Sewell, 5 H. & N. 728, was concerning property sold owner of the chemical works, but whether Beatson, in Norway, which had not been in England until after whom alone he knew and actually trusted, was acting that sale and had never been in possession of the Engas agent for the partnership, or in his individual lish owners. See, as sustaining the case at bar, Greencapacity for himself. This kind of question was raised wood v. Curtis, 6 Mass. 358; Taylor v. Boardman, 25 in the case of the Bank of Scotland v. Watson, 1 Dow. Vt. 581; Martin v. Hill, 12 Barb. 631; Freneb v. Hall, 40, where the bank and its agents carried on separatb 9 N. H. 137; Langworthy v. Little, 12 Cush. 109. Such banking business at the same office, and the bank was cases as Graut v. McLachlin, 4 Johns. 34, and The unsuccessfully sued by a person who relied in support Helena, 4 Rob. Ad. 3, do not conflict. In them there of his claim against the bank upon a receipt which were, in the foreign country, legal proceedings in rem, bore the address of the common office. One point or analogous thereto, so that the question was as to only remains for decision. The verdict and judgment respect for tho judicial proceedings of another country. for the plaintiffs have been properly set aside by the Order of General Term reversed and judgment on court below, but is it right that the judgment entered report of referee ordered. Edgerly, appellant, v. Bush, instead for the defendant Mycock should stand? We Opinion by Folger, C. J. have entertained some doubt whether the case ought [Decided June 1, 1880.] not to go to another jury to be decided upon the principles laid down in this judgment; but we have come

CRIMINAL LAW - TRIAL-CHARGES AS TO WEIGHT to the conclusion that the court ought not to put the

OF EVIDENCE — ERROR. — Upon the trial of an indictparties to this expense. The case is one in which no

ment for murder, in which a verdict of manslaughter additional facts remain to be proved, and in which

in the third degree was rendered, the judge, instead upon the facts proved no jury would be justified in

of informing the jury what must be established to finding a verdict adverse to the defendant Mycock. It

make out the offense, and leaving it for them to deteris one therefore in which, to use the words of rule 10 mine whether it had or had not been done, said: of order XL, of the General Rules of the Supreme

“Enough has been proven if you believe the witnesses Court, we have before us, as the court below had, all

on tho part of the people." Held, error. The attenthe materials necessary for finally determining the

tion of tho jury was thus directed to evidence of inquestion in dispute; and in this state of circumstances

culpation merely, its weight was stated to them as we think that the judgment of the court below should

sufficient in law to sustain a conviction for murder, so stand, and that this appeal should consequently be

that the question of fact to which their minds were dismissed.

Judgment affirmed.

turned related to the credibility of certain witnesses and not to the weight or measure of their testimony

or the existence of the intent. How far that testiNEW YORK COURT OF APPEALS ABSTRACT. mony was modified by that produced by the defendant

or what inferences should be drawn from any of it

was excluded from their inquiry. This was overstepCONFLICT OF LAW — LAW OF LOWER CANADA AS TO ping the province of the judge. The opinion of tho SALES OF CHATTELS -- COMITY - WILL NOT BE EXER- judge was calculated to make an erroneous impression CISED TO DEPRIVE CITIZEN OF TITLE. — Personal prop- upon the mivds of the jurors, so that it could not bo erty belonging to A, a citizen of New York, who had said that the prisoner had at the outset of their delibeacquired title here, and situated here, was taken with- rations an even chance that the conclusions of the jury out the consent of A to Lower Canada, where it was would be unbiased. And the circumstance that the purchased by B for value and without notice of the verdict was not "murder” but “manslaughter," was rights of A, from a trader iu property of like kind, not sufficient to show that the charge did no harm. who had it in his possession. By the law of Lower As the jury would feel relieved to some extent from Canada the purchaser of personal property from a the necessity of estimating for themselves the value of trader in like property confers good title. B conveyed the evidence, the observation of the judge was not the property to defendant, who brought it again into only erroneous but material. See Read v. Hurd, 7 New York, where his domicile was. In an action by Wend. 409; Fitzgerald v. Alexander, 19 id.402; Bulkeley A against defendant for a conversion of the property v. Keteltas, 6 N. Y. 384; Stokes v. People, 53 id. 164. in the courts of New York, held, that the title of A Judgment reversed. McKenna, plaintiff in error, v. was superior to that of defendant, and the title of B, People. Opinion by Dauforth, J. acquired under the law of Lower Canada, would not [Decided June 8, 1880.] be recognized. Though a transfer of personal property valid by the law of the domicile is valid every- NATIONAL BANK - CONSTRUCTION OF FEDERAL where, as a general principle, there is to be excepted STATUTE - STATE COURT HAS JURISDICTION IN ACthat territory in which the property is situated and TION AGAINST BANK IN ANOTHER STATE — ATTACHwhere a different law has been set up, when it is neces- MENT AGAINST PROPERTY OF BANK.-In an action in sary for the purposes of justice that the actual situs of the Supreme Court of New York against a National the thing be examined. Green v. Van Buskirk, 7 Wall. bank located in North Carolina, an attachment was 139. Yet statutes have no extra-territorial force and issued and property belonging to the defendant in this where they are permitted to operate in another State State seized. The defendant objected to this proceedthrough consity, they will not be so allowed to the in- ing on two grounds: First, that the Supreme Court has convenience of the citizen or against the policy of the no jurisdiction; the Federal statute requiring actions State. It would be to the contravention of that policy against a National bank to be brought in the Stato and to the inconvenience of the citizens of this State where such bank is located (U. S. R. S., $ 5198); and, if its courts should give effect to the statutes of Lower second, that the court has no power to graut an atCanada in respect to purchases from traders to the tachment against such a corporation, that being fordivesting of titles to movable property, acquired and bidden by U. S. R. S., $ 5242 Held, that the objection held under the law of New York, without the assent was not valid. In the absence of a statute conferring or intervention, and against the will of the owner executive jurisdiction upon the Federal courts the under that law. Notions of property are slight when State courts have the same power and jurisdiction in a bona fide purchaser of stolen goods gives a good title suits to which a National bank is a party as if it was against the original owner. Kent, C. J., in Wheel- an individual. Bowen v. First Nat. Bank of Medina, wright v. De Peyster, 1 Johus. 471. It is not required 34 How. Pr. 409; Cooke v. State Nat. Bank of Boston,


[ocr errors]

52 N. Y. 96. A construction which would forbid suits UNITED STATES SUPREME COURT against a National bank outside of its State would

ABSTRACT. prohibit suits by it outside, as the statute extends to actions by as well as against (Kennedy v. Gibson, 8

Wall. 498), and prevents it from fully exercising the
powers conferred upon it. Beside the statute (U. S. EQUITABLE ACTION

R. S., $ 5136, subd. 4) declares that such a bank may PRICE NOT DEFINITELY FIXED. — C. was indebted to a

sue and be sued in any court of law and equity as bank in a large sum; there were several judgments in fully as any natural person." The provision as to local its favor against him and he had a suit in chancery jurisdiction is to be construed as permissive, and not against it for an adjustment. An agreement in writas mandatory, and therefore not limiting the general ing was made in 1846, between it and him in which, rule which permits civil causes arising under the laws among other things, it was agreed that he should conof the United States to be prosecuted and determined vey to it his undivided share in certain real property, in the State courts unless exclusive jurisdiction of after allotment in a suit for partition, which he agreed them has been vested in the Federal courts or unless to bring, at such price as three appraisers to be apCongress has prohibited the State courts from enter- pointed by the parties should estimate; such price to taining jurisdiction of such cases. Claflin v. House- be credited on the judgments against him. Much of man, 93 U. S. 130; 1 Kent's Com. 395, 396; Bank of the agreement was performed, but in reference to that United States v. Devereaux, 5 Cranch, 85; Osborn v. part relating to the partition and conveyance it was not. United States Bank, 9 Wheat. 738; Teall v. Felton, 1 C. died, and subsequently his devisees, in 1866, effected N. Y. 537. See, also, Houston v. Moore, 5 Wheat. 1. a partition, which fact did not come to the knowledge The general liability to sue and be sued subjects those of the bank until 1872. In 1876 it brought this action banks to an action in any court in which an individual in equity for relief against the executors and devisees in like circumstances might be sued, and the subse- under the will of C. Held, that in such a case a court quent enumeration of particular courts without words of equity might entertain an action for specific perof exclusion cannot have the effect to deprive other formance. While the general rule is that a court of courts of jurisdiction. Owens v. Woosman, L. R., 3 equity cannot enforce specific performance when the Q. B. 469. Otherwise a citizen of this State having a price to be paid for it is not definitely fixed, and it claim upon land in which a bank in another State has cannot enforce an agreement to submit that price to an adverse interest would be compelled to go there to

the award of arbitrators, this case differs from those assert his rights, which is contrary to what was de

in which that rule applies. In view of a court of cided by the U.S. Supreme Court in Casey v. Adams,

equity a contract for the sale of land is treated, says 21 Alb. L. J. 376. As to the claim that the attachment Justice Story, for most purposes, precisely as if it had is prohibited by sectiou 5242, that section has reference been specifically performed. The vendee is treated as to banks in an insolvent condition only, and its object

the owner of the land and the vendor as the owner of is to prevent one creditor of a corporation whose as- the money. The vendor is deemed in equity to stand sets are insufficient to meet its liabilities from obtain- seized of the land for the benefit of the purchaser, and ing a preference. Order affirmed. Robinson v. Na- the trust attaches to the land so as to bind the heir tional Bank of Newberne, appellunt. Opinion by of the vendor. 1 Story's Eq. Juris., & 790. Of course Danforth, J.

the equity here stated is the stronger when the pur[Decided June 8, 1880.]

chase-money is actually in the hands of the vendor.

Nor is the principle inflexible that the court will not WILL- CONSTRUCTION OF - DEVISE OF FEE.-A will

specifically enforce the contract where the price is not contained this provision: “I give and bequeath my be- fixed or is left to be tixed by arbitration. In Cheslyn loved wife Susan one-third part of all my property, v. Dalby, 2 Y. & C. Exch. Cas. in Eq. 170, Cheslyn beboth real and personal, and to havo the control of my ing indebted to Dalby in a large unliquidated sum, farm as long as she remains my widow, and I wish my

gave a deed of trust to Dalby for money borrowed at son George to have the first privilege of carrying on

the time, with a stipulation that it should also stand the farm as my wife may see fit and proper, and at the

as security for the wliquidated debt of Dalby to be death of my wife all my property, both real and per- afterward ascertained by arbitration. Cheslyn having sonal, to be equally divided between my eight chil

paid the principal sum secured by the deed of trust, dren. Held, to give the wife a fee in one-third of the

brought suit for a reconveyance, and Dalby filed a testator's real estate, and not a life estate in such cross-bill to have his debt paid out of the property third. The residuary clause of the provision is not before this was done. The objection was raised that repugnant to the prior gift under the rule which re

this was in the nature of specific performance, and the quires a will to be so construed as to avoid, if possible,

amount being uncertain, and no award having been all repugnancy and give effect to all its language. made, it could not be done. But the objection was There is no occasion to reject one of the clauses in overruled. Baron Alderson says: “1. It is admitted order to sustain the other, a desperate remedy and to there is some balance due to Thomas Dalby, and it is be resorted to only in case of necessity, so that one agreed that the estate is to be subject to a lien for that rather than both provisions should fail. Trustees, etc., balance. But secondly, there is also an agreement as v. Kellogg, 16 N. Y. 83; Van Nostrand v. Moore, 52 id.

to a specific mode of ascertaining that balance in case 20; Covenhoven v. Shuler, 2 Pai. 1:22. This case is

of dispute. Now, the latter has failed by events over within the rule stated in Thornhill v. Hall, 2 C1. & F. which the parties have no control. But it seems to 2.2, as one which admits of no exception in the con

me, notwithstanding this, the former part remains struction of written instruments, that when one estate entire, and if Mr. Cheslyn has adınitted that there is is given in one part of an instrument in clear and

a balance due, and has by a deed executed under such decisive terms such estate cannot be taken away or circumstances as that it ought to be enforced, agreed cut down by raising a doubt upon the extent or mean- that his estate should be subject to a lien for that baling or application of a subsequent lause, nor by ance, why am I to decree a reconveyance of the estate inference therefrom, nor by any subsequent words without compelling him to fulfill that part of the that are not as clear and decisivo as the words of the

agreement." It was accordingly referred to a master clause giving that estate. Order affirmed. Roseboom to state an account in which this unascertained balance 1. Roseboom et al., appellants. Opinion by Dan- of Mr. Dalby's debt should be included. In Dinham forth, J.

v. Bradford, L. R., 5 Ch. App. 519, where one partner [Decided June 8, 1980.]

was in a certain event to take the partnership assets

[ocr errors][ocr errors]




at a valuation to be ascertained precisely as iu the case

EVIDENCE-SWORN COPY OF PAPER OUTSIDE OF before us, Lord Hatherley said: "Here is a man who JURISDICTION.- When an original paper was without has had the whole benefit of the partnership in respect the jurisdiction of the court and the person in whose to which this agreement was made, and now refuses possession it was refused to surrender it, he having to have the rest of the agreement performed on account been examined on commission, a sworn copy was apof the difficulty which has arisen.

If the nexed to his deposition; held, under the rule that valuation cannot be made modo et forma the court will when the best evidence is unattainable secondary evisubstitute itself for the arbitrators.” Decree of Dist. dence is recoverable, the copy was competent evidence. of Columbia Sup. Ct. reversed. Gunton et al., appel- Binney v. Runell, 109 Mass. 55; Brown v. Wood, 19 Mo. lants, v. Carroll et al. 'Opinion by Miller, J.

475; Burton v. Driggs, 20 Wall. 125. Fisher v. Green. UNITED STATES — NOT LIABLE FOR MONEYS DEPOS


GRAIN INTERMINGLED WITH States seized certain cotton, belonging to appellants, OTHER GRAIN WHEN CONVERTED.-Appellee held wareunder the Confiscation Act. The proceeds of sale

house receipts for 6,000 bushels of barley stored in the thereof were paid to the clerk under an order of the

warehouse of R., which grain was intermingled with court pending condemnation proceedings, and were by other barley, the whole amount aggregating 18,000 to him deposited in the S. bank, a designated depositary 20,000 bushels. R. being indebted to a bank, had exeof public moneys, to his own credit as clerk. Judg- cuted to it trust deeds of the warehouse under which ment in the proceedings mentioned was rendered in it took possession of that and the grain therein, and favor of appellants. In the meantime the S. bank had

refused to deliver the amount for which appellee held become insolvent and except a small dividend, depos- | receipts, although there was enough grain to meet all itors were not paid. Held, that the deposit made by outstanding receipts. Held, that appellee could mainthe clerk was not equivalent to a payment into the tain trover against the bank for conversion of the treasury so as to make the United States liable to the

6,000 bushels of grain. If two persons were the joint appellants for the loss occasioned by the bank's insol- owners of a specific chattel, and one were to sell it and vency. The designated depositaries are intended as

convert the proceeds to his own use, will it be conplaces for the deposit of the public moneys of the tended that the other joint owner could not sue in United States; that is to say, moneys belonging to trover, and recover damages for the loss of his half? the United States. No officer of the United States

Trover being for the recovery of damages sustained by can charge the government with liability for moneys the plaintiff for the conversion of his property, it canin his hands not public moneys by depositing them to not matter whether he holds the property thus conhis own credit in a bank designated as a depositary. verted jointly with another, or in severalty. His right In this case the money deposited belonged for the of property in either case is the same, and the damage time being to the court, and was held as a trust-fund he sustains is not different; and reason and justice repending the litigation. The United States claimed it, quire that the means of obtaining his rights should be but their claim was contested. So long as this contest the same in either case, nor is there any technical rule remained undecided the officers of the treasury could which prohibits it. In Chitty on Pleading, 167, it is said not control the fund. Although deposited with a bank the action lies against any person who had in his posthat was a designated depositary it was not paid into session, by any means whatever, the personal property the treasury. No one could withdraw it except the of another, and sold it, or used it without the consent court or the clerk, and it was held for the benefit of of the owner, or refused to deliver it when demanded. whomsoever in the end it should be found to belong to. And it has been held that a person owning property Judgment of Court of Claims affirmed. Branch et al.,

mingled with that of another may, on its conversion, appellants, v. United States. Opinion by Waite, C. J. maintain the action. In Jackson V. Anderson, 4

Taunt. 24; Whitehouse v. Frost, 12 East, 614; Benji

min v. Stremple, 13 Ill. 466, and Boyle v. Levings, 28 id. ILLINOIS SUPREME COURT ABSTRACT. 314, it was held that one tenant in common of a chatMARCH AND MAY, 1880.

tel may maintain trover against the other tenant in

common where he has converted the property to his CONSTITUTIONAL LAW - VALIDATING INVALID CON

This right was held to be given under the TRACTS.- Previous to 1875 corporations generally had

statute, but it only enlarges the common-law right. not the power to loan money in Illinois. By an act of

German National Bank v. Meadowcroft. Opinion by the Legislature of that year corporations of other

Walker, C. J. States authorized by their charter to loan money were WILL-CONDITION PRECEDENT TO DEVISE MUST BE allowed to loan money in Illinois, aud where such a STRICTLY PERFORMED — EQUITY.– Where the vesting corporation had previously invested and loaned money of title in an estate devised is subject to a precedent it was given power to recover the same. Held, that condition the condition must be strictly performed the statute would validate a contract of loaning pre- and equity will not vest it contrary to the law. Where viously made, and a mortgage security taken there- there is a substantial deviation from the intent of the upon when no rights of third parties intervened, and testator, as expressed in the will, the title will not that it was not in conflict with the Federal Constitu- vest. Kent, in vol. 4, § 125, in discussing this subtion. Under such circumstances the mortgagor wouldject, says: “Precedent conditious must be literally have no such equities as would give him a vested right performed, and even a court of chancery will never as against the equities of the mortgage company. A vest an estate when, by reason of a conditiou precedparty canuot have a vested right contrary to equity ent, it will not vest in law. It cannot relievo from the and justice. When such statutes go no further than consequences of a condition precedent uuperformed." to bind a party by a contract which he has attempted In Vanhorne v. Dorrance, 2 Dall. 317, it is said: to enter into, but which was invalid by reason of some * Where an act is previous to an estate, and that act personal inability on his part to make it, or through consists of several particulars, every particular must neglect of some legal formality, or in consequence of be performed before the estate can vest or take effect." some ingredient in the contract forbidden by law, the See, also, 1 Jarman on Wills (2d ed.), 672, and notes; question they suggest is one of policy and not one of Reynish v. Martin, 3 Atk. 330. In the last case it is constitutional power. United States Mortgage Co. v. said: “But in our law, where the condition is precedGross. Opinion by Baker, J.; Walker, J., dissented. ent, the legatee takes nothing till the condition is (Decided March 6, 1880.]

performed, and consequently, has no right to come

own use.



and demand the legacy; but it is otherwise where the v. Dunn, 19 Wall. 214. (2) Plaintiff, in his petition, condition is subsequent.” Nevins v. Gourley. Opin- asked judgment for $483, with interest at ten per cent, ion by Craig, J.

from a specified date, which principal and interest

would amount to more than $500. Held, sufficient in IOWA SUPREME COURT ABSTRACT.

amount to authorize a removal. Brayley v. Hedges.

Opinion by Beck, J.
APRIL 27, 1880.



SUME.—Where a vendee contracted to purchase real ESTOPPEL.-- In an action against a county for services estate “subject to" a specified mortgage, held, that as deputy county treasurer, defendant set up that such he was not bound to accept a deed containing a prodeputy had executed and filed a release for such ser

vision wherein it was stated that he was “to pay as a vices, wherein it was set forth that he had been fully part of the purchase-price of said premises” the specipaid. Plaintiff replied that such release was filed pre

fied mortgage, and an action would not lie against him vious to the holding of an election for county treas

for damages on a refusal to accept such deed. Held, urer without consideration in order to induce electors also, that parol evideuce was not admissible to show to vote for the then incumbent of the office who was a that he agreed to assume such mortgage.

There are candidate for re-election. Held, that the release could

authorities which hold that if the amount of the innot be aroided, but constituted a valid defense. The

cumbrance is deducted from the purchase-price, court remark: The release imports a consideration,

the vendee is bound to indemnify his grantor against and operates as a discharge of the defendant, unless it the incumbrance, whether he expressly promised to do can be shown that the release was given without con

so or not, for a promise will be implied. Thompson v. sideration. The plaintiff, in order to show such want

Thompson, 4 Ohio St. 333; McMahan v. Stewart, 23 of consideration, alleges, and seeks to prove, in effect,

Ind. 590; Ferris v. Crawford, 2 Denio, 595. The only that the release was executed for the purpose of brib-| point decided in Townsend v. Ward, 27 Conn. 610, was ing voters, and securing an election to a public office.

that the conveyance tendered was not objected to in It is well settled that the law will leave all who share

time, and therefore the vendee was holden. It was in the guilt of an illegal or immoral transaction where held in Burke v. Gummey, 49 Penn. St.518, that "a venit finds them, and will not lend its aid to enforce the dee of property taken subject to a mortgage makes the contract while executory, nor interfere to rescind the

debt his own; and if, on a sale upon the mortgage, there contract and recover the consideration when cxecuted. is a deficiency which the vendor is obliged to pay on In Iuhabitants of Wooster v. Eaton, 11 Mass. 378, the his bond he may recover in an action against the following language is employed : “It appears to be the

vendee.'' As we understand, this case only holds that settled law in England, and we are satisfied that it is the property constitutes the primary fund for the payalso the law here, that where two parties agree in vio- ment of the mortgage. This, if conceded to be sound, lating the laws of the land the court will not entertain does not meet the necessities of the case at bar, bethe claim of either party against the other for the cause the mortgaged property has not been exhausted, fruits of such an unlawful bargain. If one holds the and the plaintiffs seek to make the defendant primaobligation or promise of the other to pay him money, rily liable. It has been held by this court that the or do any other valuable act on account of such 'sale and conveyance of land with covenants of warillegal transaction, the party defendant may expose

ranty, subject, however, to a prior mortgage, does not, the nature of the transaction to the court, and the law

of itself and without a further showing, amount in will say, 'Our forms and rules are established to oro

law to a promise to pay off such incum brance and distect the innocent and vindicate the injured, not to aid

charge the mortgage debt." Johnson v. Monell, 13 offenders in the execution of their unjust projects,' Iowa, 300; Aufricht v. Northup, 20 id. 61; Hull & Co. and if the party who has foolishly paid his money re

v. Alexander, 26 id. 569. These cases are supported pents his folly and brings his action to recover it back, by the following authorities: Binsse v. Page, 1 Keyes the same law will say to him, 'You have paid the price (N. Y.), 87; Johnson v. Zink, 61 N. Y. 333; Strong v. of your wickedness, and you must not have the aid of Converse, 8 Allen, 557; Truiter v. IIughes, 12 N. Y. 74; the law to rid you of an inconvenience which is suit- Comstock v. Hitt, 37 Ill. 542; Fowler v. Fay, 62 id. 375. able punishment for your offense.'To the same

In Belmont v. Coman, 22 N. Y. 133, the conveyance effect is White v. Ilunter, 23 N. H. 128. This doc-contained covenants of warranty, but the incumbrance trine, which is applicable to cases where the parties was excepted therefrom, and it had been estimated as are pari delicto, inust, a fortiori, apply to a case like a part of the purchase-price, yet it was held the grantee the present, in which it does not appear that the de- was not personally liable for the amount unpaid after fendant was a partaker in the unlawful purposes.

the mortgaged premises had been exhausted. Lewis Harvey v. Tama County. Opinion by Day, J.

v. Day. Opinion by Seevers, J. REMOVAL OF CAUSE — MISTRIAL NOT TRIAL TO PREVENT REMOVAL - AMOUNT. — (1) A case was tried in a TEXAS SUPREME COURT AND COMMISSION State Circuit Court and a verdict and judgment had

OF APPEALS ABSTRACT. for plaintiff. Upon appeal this judgment was reversed and a new trial ordered. Held, that before the new CHATTEL trial a petition for removal to the Federal court under PRIVILEGE TO SELL. — In a deed of trust of a stock of U.S. R. S., $ 639. The statute declares that the peti- merchandise, given to secure the payment of promistion and affidavit for removal shall be filed at any time sory notes, the grantors were authorized to retain posbefore the trial or final hearing. The words "final session of the stock of merchandise covered by it, and hearing” refer to actions in chancery. Vamnevar v. to continue selling in their usual course of business Bryant, 21 Wall. 41. The petition must be filed at any until default in the payment of the notes for security time before the trial ; " not before a trial or any of which it was given. Held, that this alone did not .trial. “The trial” of a cause cannot mean a mistrial, constitute the deed void as to creditors. The court which counts for nothing. The words refer to that remarked that while there is no doubt great conflict in trial which shall determine the issue of fact in the the decisions upon the point, we are not prepared to case, which is the object of the trial. A mistrial, say that such a stipulation in a deed of trust without therefore, was not in the contemplation of the law- reference to the facts is legal fraud. In our opinion makers. Yulee v. Vase, 99 U. S. 539; Insurance Co. the weight of authority is against it. To hold that




authority to sell in his usual course of business invali- other than the plaintiffs, on delivery orders signed by the dates the deed would virtually deny to a trader the consiguees, the plaintiffs having no knowledge of any right to give a mortgage upon his stock for ever so dealings with the cargo. Held (by Field, J.), that upon short a time, and however inconsiderable the debt resorting to their security, the plaintiff's were entitled might be in comparison with the mortgaged property, to recover from the defendants the value of the goods or however clearly the facts might demonstrate that placed with them under the bills of lading. Meyerthere was no intent or purpose to defraud. Fletcher stein v. Barber, 16 L. T. Rep. 569; Fearon v. Bowers, v. Morey, 2 Story, 555; Briggs v. Parkman, 2 Metc. 1 Sm. L. Cas. 705; Lickbarrow v. Mason, id. 601; The 258; Jones v. Huggeford, 3 id. 515; Hughes v. Corey, Tigress, 32 L. J. 97; Wilson v. Anderton, 1 B. & Ad. 20 lowa, 399. Scott v. Alfred. Opinion by Moore, C. J. 450; Batut v. Hartley, L. R., 7 Q. B. 594. Q. B. Div., (Supreme, March 12, 1880.)

Jan. 23, 1880. Glyn Mills & Co. v. East and West India CONTRACT - SALE OF MERCHANDISE FOR FUTURE

Dock Co. Opinion by Field, J., 42 L. T. Rep. (N. S.) 90. DELIVERY — WAGERING CONTRACT. - In order to in- CORPORATION validate a contract for the sale and future delivery of CERTIFICATE OF STOCK UNDER A FORGED TRANSFER -merchandise on the ground that it is a gambling con- ESTOPPEL. — The registration of a transfer of stock tract, the intent that it should be a mere betting on and the issue to the transferee of a certificate does not the market, without any expectation of actual per- give the transferee as against the company a right by formance, must be mutual and constitute an integral estoppel to the stock. B. & Co. purchased upon the part of the contract. The secret intention of one of stock exchange 5,0001: stock in the defendant company. the parties not to fulfill his contract, uncommunicated A transfer of the stock purporting to be executed by to the other, is not enough to make the transaction C., the owner of the stock, was lodged with the comillegal, nor that it was contemplated by him thereby pany by S. & Co., the nominees of B. & Co. The comto adjust the difference resulting from the fluctuations pany, after making the usual inquiry, registered S. & in the market price in case of a rise or fall, by making Co. as holders. Afterward B. & Co., having agreed to good, in money, by way of compensation, a guaranty deposit the stock with plaintiff to secure advances, to save the other party harmless against loss, or in like caused S. & Co, to execute a transfer to plaintiffs, who manner to make good the premium on profit to accrue were accordingly registered, and received a certificate to the other in case of advance in prices. Clarke v. froin the company. Plaintiffs subsequently being reFoss, 7 Biss. 540; Lehman v. Strassberger, 2 Wood, 562; paid their advances, had no beneficial interest in the Gilbert v. Gangar, U. S. Ciro., 7 Ceut. L. J. 41; Wolcott stock, but held as trustees for B. & Co. The company v. Heath, 78 Ill. 433; Logan v. Musick, 81 id. 415; Hib-having discovered that the alleged transfer from C. to blewhite v. McMorine, 5 M. & W. 462; Porter v. Viets, S. & Co. was a forgery, replaced C.'s namo upon the 1 Biss. 177. Marx v. Ellsworth. Opinion by Walker, register, and refused to pay dividends to plaintiffs, P.J. (Com. Appeals, March 19, 1880.)

or to ackuowledge their title to the stock. In an action NUISANCE

by plaintiffs against the company, held (reversing the - WIEN PRIVATE ACTION LIES FOR OBSTRUCTING HIGHWAY. - Where defendant had ob- judgment of Lindley, J.), that inasmuch as B. & Co. structed a public street which passed along side

were the real plaintiffs, the company were not estopped plaintiff's land, by erecting a fence across the same

from denying the validity of the transfer from C. The whereby access to such land was hindered, thereby

company are not bound on behalf of the transferee to depreciating the value of the same, held, that such

make inquiry of the transferor before registering the depreciation constituted a particular injury to plaint

transfer. Ct. App., Dec. 5, 1879. Sim v. Anglo-Ameriiff entitling him to redress. Frink v. Lawrence, 20

can Telegraph Co. Opinions by Bramwell, Brett and Conn. 118; Francis v. Schoelkepp, 53 N.Y. 152; Stetson Cotton, LL. J., 42 L. T. Rep. (N. S.) 37. v. Faxon, 19 Pick. 147; Blanc v. Klumpke, 29 Cal. 156; PARTNERSHIP- EXPULSION OF MEMBER- - COMMONOswald v. Grenet, 22 Tex. 94; Wood on Nuis., ch. 18.

PROCEDURE ACT, 1854, S. 11 .

ARBITRATION Shepherd v. Barnett. Opinion by Gould, J. (Supreme CLAUSE — ORDER OF REFERENCE. — A deed of partnerCt. Feb. 24, 1880.)

ship contained a clause that “if at any time during the

said partnership the business thereof shall not be conRECENT ENGLISH DECISIONS.

ducted or managed, or the results thereof shall not be

to the satisfaction of the said W. A. R. (one of the BILLS OF LADING — SETS OF THREE- RIGHTS OF IN- | partners), it shall be lawful for the said W. A. R to DORSEE - ENTRY UNDER SECOND BILL- LIABILITY OF give a notice in writing to the other partners or partWAREHOUSEMEN. — The consignees and owners of a ner of his desire that the said partnership shall detercargo to arrive in London indorsed and delivered the mine, and in such case the partnership shall cease and first of three bills of lading to the plaintiffs as a col- determine immediately on the expiration of three callateral security for money advanced. These bills of endar months from the giving such notice." Held, lading had been signed by the master of the ship in tbat the power conferred by the clause was one which the usual set, marked respectively "First,” “Second" W. A. R. could exercise capriciously, and at his own and “Third,” and they represented the goods as de- will and pleasure. Where a partnership deed contains liverable to the said consignees or their assigns, that an arbitration clause, and disputes occur between the freight was made payable in London, and that the partners, the mere fact that one partner makes a master had affirmed to three bills of lading, “the one charge of actual fraud against his copartner is not sufof which bills being accomplished the rest to stand ficient to prevent the copartner from insisting on a void.” When the ship arrived the consignees made reference to arbitration, and the court, having regard entry of this cargo, and it was placed in defendants' to the discretion given by the Common-Law Procedure warehouses. The master on the same day lodged with Act, 1854, section 11, ought in the exercise of that disthe defendants copy of the manifest of the cargo, cretion to allow the matters which have been expressly with an authority to defendants to deliver the goods agreed to be referred to arbitration to be so referred, to the holders of the bills of lading, and on the follow- but secus, if the partner charged with fraud desires a ing day notice to detain the cargo until the freight public examination into the truth of the stigma enshould be paid. Upon receipt from the consignees of deavored to be cast upon him. Dicta of Wickens, V. the second of the bills of lading, the defendants C., in Willisford v. Watson, 28 L. T. Rep. (N. S.) 428; entered the consignees in their books as enterers, im- | L, Rep., 14 Eq. 572, dissented from; Wood v. Woad, porters and proprietors of the goods, and after removal 30 L. T. Rep. (N. S.) 815; L. Rep., 9 Ex. 190, observed of the stop for freight delivered the goods to persons upon as containing the principles laid down in Fisher


« PreviousContinue »