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tion, from the printer's name. It was probably pub- declared that those laws not ratified or confirmed by lished for the use of the authorities in England." the proprietary were void, but this was a mere repe

It not unfrequently happens that the courts and the tition of the Duke's instructions. (3 Col. Doc. 332.) legal profession have need to consult the statutory law The laws of the proprietary which wero approved by of the Province of New York, and it is a subject of re- the lord proprietor were not impugned by the resogret that tho various editions (though much more lution; and, therefore, clearly those laws not rebeautifully printed than the State session laws) are of jected by him remained operative as before the resso incomplete and untrustworthy a character. Mr. olution. Indeed, Mr. Smith himself, later on in George H. Moore, the accomplished superintendent of his history, states that in 1741, when Mr. Horsmanden the Lenox Library, who has given the subject the most was directed by the Assembly to compile the laws, it valuable attention, estimates that of nearly two thou- was discovered that several acts passed prior to 1691 sand statutes enacted between 1091 and 1775, not one- were still in force, and an aot was then proposed to rethird have been printed in the various collected and peal all such, but it was not passed. (2 Smith's Hist'y revised editions - all of which are long since out of N. Y., p. 66.) Mr. Butler has stated the reasons which, print.

in his opinion, probably prompted the resolution of A republication of the provincial laws of New York the lower house. (Butler's Const. Hist’y, 41.) Judge is unquestionably desirable, uot only for the use of the Hoffman thought oue of the acts of the Assembly of legal profession but for the benefit of the public author- | 1683, founding the Court of Chancery, be in force ities and the historical student. If such an undertaking as late as the year 1834. (1 Hoffman's Ch. Pr. 15-18.) be too long delayed, it may be wholly prevented by the In so far as this resolution under consideration condestruction of either the private repositories or the cerned the ordinances of the governors and council charter rooms of the public archives, containing the prior to 1691, it was also declaratory of the rule of law, necessary but scattered materials. Yet those who are that such ordinances must not be contrary to the Confamiliar with the Kent and Radcliffe, and the Van stitution of England, by which was meant the comNess and Woodworth revisions of the State laws, must mon law; it could not affect those ordinances which appreciate the important relations which the pro- were valid at common law. (Op. Atty.-Gen. Kemp. vincial laws bear to our present statute law, and Kemp papers MS. N.Y. Hist. So. Col.) The reason why to the actual and contemplated statutory codification. the provincial revisors were directed to begin with the Such provincial laws are the very foundation stone of acts of the Assembly first held after the Revolution of our juridical superstructure. An intelligently an- 1688, undoubtedly was that most of the laws of the pronotated revision of these laws would of itself complete prietary were not in print, so that they were little the legal history of the State. Massachusetts has be- known even in the eighteenth century. (24 Wend. 625.) stowed on her early statutes much more attention But the omission of the revisors does not affect the than New York; yet the early laws of New York are validity of the earlier laws. quite as interesting and important.

One of the first acts of the Assembly of 1691 was The question, how far the flaws of the Province that, “declaring what are the rights and privileges of which were enacted before the year 1691, remained in their majesties subjects inbabiting within their Prorforce after that year, has been the subject of judicial ince of New York." The purpose of this act was inquiry at a comparatively recent date. Doubts on similar to that of the Charter of Libertys," disalthe subject were occasioned by the statements of the lowed by King James II., (Vol. 21, Alb. L. J., p. 268.) early historian, Smith, “that thoso acts which were - a limitation of the prerogative and an additional made in 1683 and after the Duke's accession to the guaranty of political rights. The act of 1691 suffered throne, when the peoplo were admitted to a participa- the fate of its prototype, being repealed in the year tion of the legislative power, are for the most part 1697, and thus the inhabitants were remitted to their rotten, defaced or lost; and that all laws antecedent original status as English subjects, resident in a royal to the Assembly of 1691, were disregarded both by the Province of the Crown. Legislature and the court." (Smith's Hist'y N. Y., The commission to Colonel Sloughter, as has been Lond. ed., 1757, p. 73; 2 Graham's Hist'y of U. S., p. before stated, formally granted the rights of the in255.)

habitants of New York to a representative Assembly The lower house of the provincial Assembly, on the - a right of which they could not afterward be law24th of April, 1691, resolved, that all the laws consented fully deprived. (Chitty's Prerog. 33.) This particular to by the General Assembly under James, Duke of commission is important, as it was a distinct recogni. York, and the liberties and privileges therein con- tion by the new sovereigns of the bicameral legistained, granted to the people and declared to be their lative system, or the principle of two legislative rights, not being observed and not ratified and ap- houses. Thus, this essentially Anglican institutionproved by his Royal Highness, are null and void and developed in England, and like the common law acof none effect; and also, the several ordinances made companying the Anglican race in all its migrationsby the late governor and council, being contrary to the was permanently established in New York to continue Constitutions of England and the practice of the gov- with but minor modifications until the present time. ernment of their majesties other plantations in Our juridical plan is not the only debt that we owe to America, are null, void and of none effect or force the progress of the common law, for the very theory within this Province. (1 Assembly Jour. 1, 8, 9.) This and practice of a bicameral Legislature, is itself a comresolution never ripened into a law. It is said to have mon-law development. been simply declaratory of the existing rule on the The commission to Governor Sloughter also empow. subject, and, in reality, not to have had the effect of ered him, with the advice and consent of the council, abrogating any of the valid enactments of a date prior to erect and establish courts of judicature for the trial to 1691. ( (Van Winkle v. Constantine, 10 N. Y. 428; all causes, legal and equitable, civil and criminal. Humbert v. Trinity Church, 24 Wend. 625. See, also, This clause relates to a species of prerogativo legislaJackson v. Gilchrist, Johns. 112.) A close examina- tion which has by tradition been vested in the Crown, tion of the resolution in question shows that it only independent of the Legislature. The right of the

Crown to erect courts of law without the concurrent * Attention was called to this edition by Mr. Winters, the

action of Parliament seems to have been admitted in assistant librarian of the New York Law Institute, who has

England. Whether such power extended to courts of made the session laws of the different States a special

equity has been questioned and denied, but in the study, to the great benefit of his library. The N. Y, Hist. colonies this prerogative clearly extended to the estabSociety possess a copy of the Baskett edition.

lishment of courts both of law and equity. (Chalmers'

Col. Op., p. 194.) In the colonies, however, the Crown quit-rents — always greatly in arrears. (Lond. Doc. rarely claimed the exclusive right; and at times the xxiv, 880.) colonial and provincial Legislatures seem to have been The proceedings of the Court of Chancery in New allowed a share in the establishment of the judicato- York were, doubtless, somewhat intermittent; Blake ries, while at others, when the Crown asserted its pre- (Int'd to Ch. Pr.), and Johnson, (Int'd to Johns. Ch. rogative, they were excluded.

Rep.) have thought that this tribunal transacted but The permanent judicial establishment of the Prov- Jittle business prior to the Revolution of 1775-6, but it ince of New York owed its origin to the Assembly of is more than probable that the opinion of these gen1091. A Supreme Court of judicature, possessing the tlemen was founded on the statement of the historian jurisdiction of the English Courts of King's Bench, Smith, “that the wheels of chancery have ever since Common Pleas and Exchequer, was then created. (1727) rusted upon their axis” — “the practice being (Bradford, 1694 ed., N. Y. Laws, p. 2.) This tribunal contemned by all gentlemen of eminence in their prowas, in the main, a court of law, possessing jurisdic- fession.” (1 Smith's N. Y. 280.) It must be rememtion of causes involving upward of twenty pounds, bered, in this connection, that Mr. Smith, though livand also an extended supervisory and appellate juris- ing at the time of which he wrote, was far from an diction over the inferior judicatories. In the year impartial witness. His father had been engaged profes1733 it was asserted, that it had likewise the equity sionally in the hostile attack on the court of equity in jurisdiction of the court of equity in the Exchequer Governor Cosby's administration, and had thus become Chamber; and this pretension was decided in the af- a leader of the popular party. The historian Smith firmative. The Judiciary Act of 1691 was continued followed the political bias of his father, though at the by an act of Assembly, passed November 9th or 11th, beginning of the Revolution he abandoned the popu1692 (Bradford's ed., N. Y. Laws, 1694, p. 61); and the lar party and became a judge under the Crown, in latter was again renewed in October, 1695, for two Canada. The late Judge Hoffman, who, years afteryears. In 1697 this act was finally extended for one ward, gave the subject the closest attention, seems to year; but, onts expiration, differences having arisen have had a very different estimate of the volume of between the Assembly and the governor, it was allowed chancery business in the Province, as well as of comto expire by limitation. Finally Lord Bellomont, as parative importance. (Hoffman's Ch. Pr. pp. 11-14.) the royal governor of the Province, in 1699, resorted to Doubtless the Albany records of the Provincial Court the prerogative and continued the courts by an ordi- of Chancery confirm the latter's view. nance, in which the Assembly had no part. (Appendix The early establishment of a Court of Chancery in No. v., 2 R. L. 1813.) This ordinance was confirmed New York was, in several aspects, important; it conby Lord Corubury in 1704. (Appendix No. vi, 2 R. L. tributed to its jurisprudence the symmetry which that 1813.) On this footing, the Supreme Court continued of many of the other colonies lacked, and it finally led down to the establishment of the State government, to the constitutional recognition of the office of chanwhen it was further continued as part of the existing cellor, possessing almost tho powers of the lord chanorder of things.

cellor in England. (Camp. & Cambreling's Ch. Dig., The Court of Chancery of the Province, originally p. xi, Pref.) It is now difficult to estimate the influerected by the act of 1683, was remodelled by the “ Act ence exercised for over half a century by the chancelfor establishing courts of judicature," passed in 1691. lors of the State of New York, not only within their This act, continued from time to time, as described in own proper sphere, but as well in the formation of the preceding paragraph, finally expired. On the 28th equity jurisprudence in its American phase. Without of August, 1701, an ordinance was issued reestablish - tho chancery reports of this State, it is needless to say ing the chancery and authorizing the governor and that the New York contributions to practical adminiscouncil, or any three of them, to hold the court. In trative jurisprudence would be greatly diminished in June, 1702, its operations were suspended until a fee value. True it is, that Justice Story has said that equity bill should be settled, and it was not again revived was scarcely felt in New York until about the time of until the 7th day of November, 1704, when it was Caine's and Johnson's reports ($ 56, Story's Eq. Jur.) proceed. (2 R. L. 1813, Appendix vii.) But it is not strange that the influence of equity juris

prudence was greatly augmented by the efforts of the tested against the establishment of a court of equity reporters. That their influence was at once so extensive by the governor without their concurrence; but not. depended, however, on the highly developed condition withstanding this fact the Court of Chancery, until of tho equity administration at the time the reports bethe year 1711, continued to be held by tho governor gan in New York. Taking into consideration the fact, and council, by virtue of the ordinanco mentioned. that equity jurisprudence was greatly neglected in many Subsequent to the year 1711, the governor alono sat as of the Anglo-American colonies, and that until Lord chancellor. (Council Min.)

IIardwick's time the administration of equity, even in The very early establishment of a Chancery Court in England, presented many uncertainties, it is a remarkaNew York was one of several causes contributing to ble fact that tho ameliorating tendency of equity was the relative preeminence of its particular jurispru- recognized iu New York in the very beginning of its dence. In many of the American colonies equity political life. It must be considered a very fortunate jurisprudence had, prior to the War of Independence, circumstance that it was so recognized, for when the no distinct existence in any large and appropriate equity powers of the chancery were distributed sense. In the Province of New York there was, how- under the Constitution of 1846, throughout the courts ever, a tendency to more closely conform to English of record of New York, a well-understood jurisdiction precedents. (2 Smith's Hist'y N. Y. 320.) Matters of was thus engrafted on the law courts and the process. equity, as distinct from cases cognizable at law, were of assimilation was rendered more facile and certain. recognized by the “Duke's Lawes" of 1605, while a One of the first duties of the English authorities, Court of Chancery was eo nomine established by the after the conquest, was to make suitable provision for act of 1683. It must bo conceded, that there was a the probate of wills and tho administration of estates. strong popular prejudice against the discretionary (The Duke's Lawes, Tit. Administration.) The clerks power of the chancellor, which was thought to be of the courts of session which had cognizance of probounded by no very defined limit, and to conceal the bate in the English parts of tho Province were directed undefined prerogative with which colonial principles to certify the names of the decedents and their execuwere ever at war. But it has been said that tho true tors or administrators, with their security, to the regrounds of the hostility of the people of New York to corder's office at New York city. This led to the

I the equity courts was their jurisdiction of the king's establishinent of a prerogative court (Bradford's ed.

N. Y. Laws, ed. 1694, p. 72), from which letters testamentary and of administration issued under its peculiar seal. The delegates appointed to take charge of the estates of intestates, in the distant counties, pursuant to the act of 1692 finally took the name of surrogates, which then signified deputies of the prerogative court. This name is now retained in our probate courts, although the surrogate has become chief judge of the probate court. In the year 1754 a judge of probate was appointed; he shared with the prerogative office the duties of ordinary and surrogategeneral. There was very little that was either original or peculiar in the courts appointed for the cognizance of wills and administration.

The judicial organization of the Province may be regarded as having been established by the Judicature Act of 1691 (Bradford's N. Y. Laws, ed. 1694), and the jurisdiction and tribunals established by it, have remained essentially the same to the present day. This act defined the courts of justices of the peace, the courts of sessions of the peace, the county courts of Common Pleas, the mayor's courts of cities, the Supreme Court and the Court of Chancery. It also regulated the Provincial Court of Appeals, which was almost identical with the old Court of Errors, if not its progenitor. From the provincial Court of Appeals, appeals lay to the King in council.

It may be proper, in a survey of the judicial organization of the Province, to refer to the Court of Admiralty established for New York, although it posbessed but a limited jurisdiction within the Province. Under the Duke of York, special commissions, issued for the determination of admiralty causes, but in 1078 a regular court was established under the governor's commission. In the year 1699 the lords of trade recommended that the chief justice of the Supreme Court of New York be empowered to act as judge in admiralty. Accordingly William Smith, then chief justice, was made admiralty judge, and fulfilled the duties of that station from 1699 to 1702. Ultimately a vice-admiralty court was established by commissions issuing from the High Court of Admiralty in England. Appeals from the Vice Admiralty Courts for some time lay to the Court of Admiralty in England, but shortly before the American Revolution a superior court of admiralty was established in North America, and thenceforth all appeals from the vice-admiralty were directed to be made to it.

Jurisdictions have since been shifted and interchanged; and yet, after all, but few novelties have been engrafted on the ancient foundations.

bill was found, and the indictment and record show upon the face of the proceedings that the offense charged was for embezzling, abstracting and misapplying the funds of the First National Bank of Ashland, created under the National Banking Act.

Relator was arrested and lodged in the county prison, then took out this writ of habeas corpus, and in obedience to its command, Ketner, the warden of the prison, produced the body, and made return that he held the prisoner by virtue of above-named proceedings.

By virtue of article V, section 3, of the Constitution of 1874, the Supreme Court of Pennsylvania, in cases of habeas corpus, has original jurisdiction.

William A. Marr, James Ryon, William B. Mann and John W. Ryon, for relators. The State court has no jurisdiction, embezzlement not being a commonlaw offense. Russell on Crimes, 163; 4 Bl. Com. 230; United States v. Clew, 4 Wash. C. C. Rep. 1700. Congress has power to give the Federal courts exclusive jurisdiction. Houston v. Moore, 5 Wheat. 1--24; 1 Kent's Com. 398; Curtis' Com. 176; Claflin v. Houseman, 3 Otto, 141.

Where an act of Congress creating a corporation provides a punishment to be inflicted upon any officer of the corporation who embezzles its property, it is not competent for the State Legislature to make the same act an offense against the laws of the State. Commonwealth v. Fuller, 8 Metc. (Mass.) 313; Commonwealth v. Felton, 101 Mass. 204; Commonwealth v. Barry, 116 id. 1; State v. Tuller, 34 Comu. 280. By section 711 of the Judiciary Act of 1789 (U. S. R. 8. 134), the jurisdiction rested in the Uuited States courts is exclusive of the State courts. Section 5.209, et seq., of the National Banking Act provides for punishing embezzlement by officers.

A. W. Schalck, district attorney, and IIughes & Farquhar, for respondent. Jurisdiction of State courts has been sustained in Buckwalter v. United States, 11 Serg. & R. 196; White v. Commonwealth, 4 Binn, 418; Commonwealth v. Shaefer, 4 Dall. 27; United States v. Ilutchinsoni, 4 Clark, 211; Jett v. Commonwealth of Virginia, 7 Am. Law Reg. (N. S.) 265; Claflin v. IIouseman, 3 Otto, 130; Colemun v. State of Tennessee, 7 id. 509, especially the dissenting opinion of Clifford, J., not differing in this respect from the majority of the court.

Paxson, J. It appears by the return to this writ that the relator is held to answer an indictment in the court of quarter sessions of Schuylkill county, charging him, as cashier of the First National Bank of Ashland, with having embezzled the funds and property of said bank. There are three counts in the indictment, each varying the form of the charge, but not essentially changing its substance.

It is almost needless to say that a habeas corpus is not a writ of error. Hence, if the court below had jurisdiction of the offense, we cannot correct its rul. ings in this proceeding, however erroneous they may be. On the other hand, it is equally clear that if the relator is being prosecuted for a matter which is not an iudictable offense by the law of Pennsylvania, or one over which the court below has no jurisdiction, it would be our right, as well as our plain duty, to discharge him. No authority is needed for so obvious a proposition.

Embezzlement by the cashier of a bank is not a common-law offense. This indictment must rest upon some statute of this State or it cannot be sustained, Ilas it such support? As preliminary to this question, it is proper to say that section 5:209 of the United States statutes provides specifically for the punishment of cashiers and other officers of National banks who shall be guilty of embezzling the moneys, funds or credits of such institutions. The relator was not indicted under this section, and could not have been in a State court. Our own legislation upon this subject

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may be briefly stated. We have first the Crimes Act of ciously, willfully and fraudulently making false entries 1860 (P. L. 382), the 116th section of which prescribes in tho books, reports and statemeuts of the said bank. and punishes the offense of embezzlement by any person

James Ryon, for plaintiff in error. “being an officer, director, or member of any bank, or other body corporate or public company.' Then

A. W. Schalck, district attorney, Geo. R. Kaercher we have the act of May 1, 1861 (P. L. 515), entitled “A

and Lin Bartholomew, for defendant in error. supplement to an act to establish a system of free Paxson, J. The second assignment denies the jurisbanking in Pemsylvania, and to secure the public diction. The plaintiff in error was convicted upon an against loss from insolvent banks, approved 31st March, indictment charging him as receiving teller of the First 1860,” which also prescribes and punishes embezzle- National Bank of Mahanoy City, with fraudulently ment by bank officers. Lastly, there is the act of 12th making false entries in the books, reports, and stateof June, 1878 (P. L. 196), which amends the aforesaid ments of said bank, with intent to injure and defraud 116th section of the act of 1860, by substituting a new the said bank, and we are asked to 'reverse the judgsection in its place, and imposing a different punish

ment upon the ground that the offense charged having ment. This leaves the acts of 1861 and 1878 as the only been committed by an officer of a National bank, it is ones which could possibly support the indictment. It not the subject of an indictment in a State court. was urged, bowever, and with much force, that the act Commonwealth ex rel. Torrey v. Ketner, reported above, of 1861 was only intended to apply to banks organized was relied upon to sustain this position. Torrey was under the free banking law, of which it forms a part; indicted as cashier of a National bank with embezzling and that as to the act of 1878, the offense charged in the funds of the bank, and was discharged upou habeas the indictment was committed prior to its passage. corpus, for the reason that the offense was not indictaThis fact was formally conceded upon the argument, ble at common law, and our statutes defining and punand while we might not be able for such reason to

ishing the offense do not apply to National banks. grant relief upon habeas corpus, it furnishes a conclu- Here the indictment charges an offense which was a sive reason why, upon a trial in the court below, the

crime at common law. In Commonwealth v. Beamish, Commonwealth could derive no aid from the act of

31 P. F. S. 339, it was decided that the fraudulent al1878.

teration of a book, known as a tax duplicate, was We are spared further comment upon these acts for forgery at common law. It is plain, under this authorthe reason that they have no application to Nationality, that the plaintiff in error could have been indicted banks. Neither of them refers to National banks in

for forgery. Tho indictment here is laid under the terms, and we must presume that when the Legislature statute, and does not charge the offense of forgery in used the words “any bank," that it referred to banks the technical manner required by the strict rules of created under and by virtue of the laws of Pennsylva- the common law, but, as in Commonwealth v. Beamish, nia. The National banks are the creatures of another

is good under our Criminal Procedure Act. That the sovereignty. They were created and are now regulated

act of Assembly does not call it forgery makes no difby the acts of Congress. When our acts of 1860 and ference. It is the same offense. 1861 were passed there were no National banks, nor The first assignment alleges error in another case, in even a law to authorize their creation. When the act

which the plaintiff in error was convicted and senof 1878 was passed, Congress had already defined and tenced. We cannot, upon this writ of error, reverse a punished the offense of embezzlement by the officers judgment in another case though against the same of such banks. There was therefore no reason why

party. Nor is it material, as the record shows the the State, even if it had the power, should legislate plaintiff has served out the term of imprisonment imupon the subject. Such legislation could only produce posed by the court. uncertainty and confusion, as well as a conflict of

Judgment affirmed. jurisdiction. In addition, there would be the possible danger of subjecting an offender to double punish- MORTGAGE OF SUBSEQUENTLY ACQUIRED ment, an enormity which no court would permit if it

PERSONAL PROPERTY. had the power to prevent it.

An act of Assembly, prescribing the manner in ENGLISH HIGH COURT OF JUSTICE, COMMON PLEAS which the business of all banks shall be conducted, or

DIVISION, MAY 14, 1880. limiting the number of directors thereof, could not by

LAZARUS V. ANDRADE, 43 L. T. Rep. (N. S.) 30. implication be extended to National banks, 1 or the reason that the affairs of such banks are exclusively The grantor of a bill of sale assigned to the grantee the under the control of Congress. Much less can we, by

whole of the stock-in-trade, chattels, goods, and effects mere implication, extend penal statutes, like those of

in certain specified premises, and also the stock-in

trade, goods, chattels, and effects which might at any 1861 and 1878, to such institutions.

timo during the continuance of the security bo brought The offense for which the relator is held is not in

into the premises either in aďdition to or on substitudictable either at common law or under the statutes of

tion for the stock-in-trade, goods, chattels, and effects Pennsylvania We therefore order him to be dis- therein at the time of the making of the bill of sale. charged.

Held, by Lopes, J. (in further consideration), that the

property in stock-in-trade brought upon (tho premises PENNSYLVANIA SUPREME COURT, MAY 3, 1880.

subsequently to the making of the bill of sale passed

by it to the grantee. LUBERG, Plaintiff in Error, v. COMMONWEALTH OF

HIS was an interpleader issue tried before Lopes, J. PENNSYLVANIA.

The plaintiff was the holder of a bill of sale given

by one Phillips, whereby he assigned to the plaintiff A State court has jurisdiction to try an indictment against

“all and singular the stock-in-trade, chattels, goods, the cashier of a National bank for fraudulently{making

and effects now being in, upon, or about the messuage false entries in its books with the intention to injure the bank, such acts being forgery at common law.

or dwelling-house, warehouse and premises, situate and being No. 62 Wilsou street, Finsbury, in the

county of Middlesex, tho particulars whereof are set Luberg

forth in the schedule hereunder written. And also upon an indictment charging him as receiving teller of the stock-in-trade, goods, chattels, and effects which the First National Bank of Mahanoy City, a bank shall or may at any time or times during the continuduly incorporated, organized and established under ance of this security be brought into the aforesaid the laws of the United States, with unlawfully, mali- messuage or dwelling-house, warehouse and premises,


ERROR to the Schuylkill quarter sessions. Charles

or be appropriated to the use thereof, either in addi- portion of the stockholders of the company disputed the tion to or in substitution for stock-in-trade, goods, validity of the sale and of the bonds, and appointed a chattels, and effects now being therein or any of committee to represent the stockholders. An arrangethem."

ment was made between the two committees whereby The schedule specified various quantities of ostrich the opposition to the foreclosure sale was withdrawn and other feathers and some furniture.

and the stockholders of the company were awarded the The defendant, an executive creditor, seized the right to subscribe for the stock of a new company to be property on Phillips's premises, including stock which organized by the bondholders' committee called the W. had been brought there in substitution for that which company, upon the terms set forth in a circular menwas there at the date of the making of the bill of tioned. By that circular the stockholders named were sale.

to have the option for thirty days from its date upon

the payment of ten dollars per share in installments LOPES, J. This bill of sale purported to assign to

and the surrender of their old stock to join in the W. the plaintiff all the stock-in-trade, chattels, goods and

corporation. After thirty days the right to do this effects in the messuage, particulars whereof were set

was to cease; the railroad property was to pass at once forth in a schedule thereunder written. And also the

to the new corporation. This company was organized. stock-in-trade, goods, chattels, and effects which

Plaintiff in his complaiut set up that the W. comshould or might at any time or times during the con

pany, the defendant, obtained the property of the T. timuauce of the security be brought into the messuage,

& W. company; that plaintiff was an owner of shares warehouse and premises, or be appropriated to the use

in the latter company; that he had no kuowledge of thereof, either in addition to or in substitution for

the agreement between the committees until long stock-in-trade, chattels, and effects now being therein,

after the expiration of the thirty days named, and or any of them. The sheriff had seized stock-in-trade

that after he had notice and before the payment of the not being contained in the said schedule, nor in the

last assessment he tendered to the chairman of the premises when the bill of sale was executed, but other

purchasing committee of the bondholders the amount stock-in-trade not comprised in the schedule, which

of the assessment upon his shares, and offered to surhad been brought into the premises by the grantor

render them, and demanded stock in the W. corporasubsequently to the date of the bill of sale. Such last

tion, which demand was not complied with. Held, mentioned property had been brought into the prem

that no action for damage would lie by plaintiff against ises in addition to or in substitution for stock-in-trade

the W. corporation. If the foreclosure sale was inin the premises when the bill of sale was executed. It

valid plaintiff might by proper proceeding attack it, was contended for the defendant (the execution cred

but if he claimed rights under the arrangement itor) that the goods brought into the preniises subse

made for the benefit of the stockholders of the T. & quently to the execution of the bill of sale did not pass

W. company between the committees, he must show to the plaintiff, and that the title of the defendant in that he had complied with the terms of the arrangerespect of them was preferable to the title of the

ment. Judgment affirmed. Thornton, appellant, v. plaintiff (the claimant). IIolroyd y. Marshall, 7 L. T.

Wabash Railway Co. et al. Opinion by Rapallo, J. Rep. (N. S.) 172; and Leatham v. Amor, 38 L. T. Rep; [Decided Sept. 21, 1880.] (N. S.) 785, were relied upon by the plaintiff, and

NEGOTIABLE INSTRUMENT - PAYMENT OF DEBT BY Belding v. Read (ubi sup.) by the defendant. The

CHECK-LOSS OF CHECK - CERTIFIED CHECK - PAYprinciple deducible from these decisions is, that prop

MENT ON FORGED INDORSEMENT - RIGHTS AND LIAerty to be after acquired, if described so as to be capable

BILITIES OF PARTIES.- Where a party pays his own of being identified, may be, not only in equity but also

debt by a check to the order of his creditor or of a at law, the subject-matter of a valid assignment for

party nominated by his creditor, he can be called upon value. The contract must be one which a court of

to pay it again in case the creditor loses or is de-. equity would specifically enforce. Belding v. Read, 3 H.

frauded of the check and it is paid to the finder or & C. 955, was decided before the Judicature Acts, and

fraudulent holder on a forged indorsement. And the is distinguishable from the present case. . The ground

case is not varied by the circumstance that the check of that decision was that the description, "all other

was certified after delivery and before payment, it not the personal estate and effects whatsoever now being

being shown that such certification was procured by the or hereafter to be on the premises or elsewhere in the

creditor to whom the check was given or by the payee United Kingdom,” was so vague that it did not entitle

of the check. If the check had been lost and the the claimant to institute a suit for specific performance

finder had procured it to be certified and forged the of the contract. Neither the character of the property

indorsement, the certification would not be binding nor its whereabouts was indicated, and there was

upon the bank nor affect the rights of the parties after nothing to earmark it. In this case the property is to

it had been surrendered. It is only in case the true be brought into the premises, or to be appropriated to

owner of the check has received the certification that the use thereof, either in addition to or in substitution

recourse can be had upon it against the certifying for property then on the premises. I think the assign

bank notwithstanding the subsequent loss of the check ment sufficiently specific, the property in question

and the payment upon the forged indorsement. In this having become specific by being brought on to the

case where plaintiff received a check to the order of premises in addition to or in substitution for property

H. from the defendants on the M. bank, and this mentioned in the sched'ile. The case of Leatham v.

check was certified by the M. bank and afterward paid Amor (ubi sup.) is a strong authority in favor of this

upon a forged indorsement, the amount of the check view. Judgment for the plaintiff.

having been charged by defendant against plaintiff aud by them settled, held, that defendant was liable to

plaintiffs for the amount of the check, it not appearing NEW YORK COURT OF APPEALS ABSTRACT.

that the certification was obtained by plaintiffs or their

agent, or that the claim of defendants upon the M. CORPORATION-RAILROAD COMPANY - RIGHTS OF bank for the check had been barred by the statute of STOCKHOLDER-FORECLOSURE OF MORTGAGE -- FORMA- limitation. It is well settled that a bank paying upon TION OF NEW COMPANY. An action was carried on a forged indorsement must bear the loss and camot to foreclose a mortgage upon the railroad aud fran- charge to a depositor. Judgment aflirmed. Thompson chises of the T. & W. railroad company, and the et al. v. Bank of British North America, appellants. mortgaged property sold thereunder to a committee Opinion by Rapallo, J. representing the holders of the mortgage funds. A [Decided Sept. 21, 1880.]

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