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articles have no greater ralue for the purposes of the ence may be made to section 4281 of the Revised Statcontract of transportation between the parties to that utes of the United States (a re-enactment of $ 69 of contract. The carrier must respond for negligence up the act of February 28, 1871, ch. 100, 16 St. 458), which to that value. It is just aud reasonable that such a provides that if auy shipper of certain enumerated contract, fairly entered into, and where there is no articles, which are generally articles of large value in deceit practiced on the shipper, should be upheld. small bulk, “shall lade the same, as freight or baggage There is no violation of public policy. On the con- on any vessel, without at the time of such lading giv. trary, it would be unjust and unreasonable, and would ing to the master, clerk, agent, or owner of such vesbe repugnant to the soundest principles of fair dealing sel receiving the same a written notice of the true and of the freedom of contracting, and thus in con

character and value thereof, and having the same enflict with public policy, if a shipper should be allowed tered on the bill of lading therefor, the master and to reap the benefit of the contract if there is no loss, owner of such yessel shall not be liable as carriers and to repudiate it in case of loss. This principle is not thereof in any form or mayner, nor shall any such a new one.

master or owner be liable for any such goods beyond Iu Gibbon v. Paynton, 4 Burr. 2298, the sum of £100 the value and according to the character thereof so was hidden in some bay in an old nail-bag and sent by notified and entered." The principle of this statute a coach and lost. The plaintiff knew of a notice by is in harmony with the decision at which we have the proprietor that he would not be answerable for arrived. money unless he knew what it was, but did not apprise The plaintiff did not, in the course of the trial, or the proprietor that there was money in the bag. The by any request to instruct the jury, or by any excepdefense was upheld, Lord Mansfield saying: “A com- tion to the charge, raise the point that he did not fully mon carrier, in respect of the premium he is to re- understand the terms of the bill of lading, or that he ceive, runs the risk of the goods and must make good was induced to sign it by any fraud or under any misthe loss, though it happen without any fault in him, apprehension. On the contrary, he offered and read the reward making him answerable for their safe de- in evidence the bill of lading as evidence of the coulivery. His warranty and insurance is in respect of tract on which he sued. The distinct ground of our the reward he is to receive, and the reward ought to decision in the case at bar is, that where a contract of be proportionable to the risk. If he makes a greater

the kind, signed by the shipper, is fairly made, agreewarranty and insurance he will take greater care, use ing on a valuation of the property carried, with the more caution, and be at the expense of more guards rate of freight based on the condition that the carrier or other methods of security, and therefore he ought, assumes liability only to the extent of the agreed in reason and justice, to have a greater reward." To valuation, even in case of loss or damage by the neglithe same effect is Butson v. Donovan, 4 Barn. & gence of the carrier, the contract will be upheld as a Ald. 21.

proper and lawful mode of securing a due proportion The subject-matter of a contract may be valued, or between the amount for which the carrier may be the damages in case of a breach may be liquidated in responsible and the freight he receives, and of protectadvance. In the present case, the plaintiff accepted ing himself against extravagant and fauciful valuathe valuation as “just and reasonable.” The bill of tions. Squire v. New York Cent. R. Co., 98 Mass. 239, lading did not contain a valuation of all animals at a 245, and cases there cited. fixed sum for each, but a graduated valuation accord- There was no error in excluding the evidence ofing to the nature of the animal. It does not appear fered, or in the charge to the jury, and the judgment that an unreasonable price would have been charged of the Circuit Court is for a higher valuation. The decisions in this country

Affirmed.
are at variance. The rule which we regard as the
proper one in the case at bar is supported in Newburger MORTGAGE BY RAILROAD-OPERATING ROAD
v. Howard, 6 Phila. 174; Squire v. New York Cent, R.

AFTER DEFAULT.
Co., 98 Mass. 239; Hopkins v. Westcott, 6 Blatch. 64;
Belger v. Dinsmore, 51 N. Y. 166; Oppenheimer v. U. UNITED STATES CIRCUIT COURT, E. D. MISSOURI,
8. Exp. Co., 69 III. 62; Magnin v. Dinsmore, 56 N. Y.

NOVEMBER 3, 1884.
168, and 62 id. 35, and 70 id. 410; Earnest v. Express
Co., 1 Woods, 573; Elkins v. Empire Trans. Co., 81*

BLAIR V. ST. LOUIS, ETC., R. Co.* Penn. St. 315; South & North Ala. R. Co. v. Henlein, 52 Ala. 606; Same v. Same, 56 id. 368; Muser v. Hol

The fact that a railroad continues to operate its road after land, 17 Blatchf. 412; Harvey v. Terre Haute R. Co., 74

default in the payment of a mortgage debt does not Mo. 538; and Graves v. Lake Shore R. Co., 137 Mass.

make the railroad the agent or trustee of the mortgagees, 33. The contrary rule is sustained in Southern Expo

to incur debts which shall be a paramount lien to that of

the mortgage.
Co. v. Moon, 39 Miss. 8:22; The City of Norwich, 4 Ben.
271; U. S. Exp. Co. v. Backman, 28 Ohio St. 144; Black

N equity. Exceptions to master's report.
v. Goodrich Transp. Co., 55 Wis. 319; S. C., 13 N. W.
Rep. 244; Chicago, St. L. & N. 0. R. Co. v. Abels, 60 Walter C. Larned and Theo. G. Case, for complain-
Miss. 1017; Kansas City R. Co. v. Simpson, 30 Kans.

ant. 645; S. C., 2 Pao. Rep. 821 ; and Moulton v. St. Paul,

John O'Grady, for receiver. etc., R. Co., 31 Minn. 85; 8. C., 16 N. W. Rep. 497. We have given consideration to the views taken in these James D. Carr and George D. Reynolds, for interlatter cases,

but are unable to conour in their conclu. venors. sions. Applying to the case in hand the proper test to

BREWER, J. 1. The first exception runs to a matter be applied to every limitation of the common-law lia

of practice. On the 24th of March, 1884, this court, in bility of a carrier-its just and reasonable character

its order respecting intervening claims, directed the we have reached the result indicated. In Great Brit

master as follows: ain, a statute directs this test to be applied by the

“It is further ordered, that when an intervening courts. The same rule is the proper one to be applied

claim, so far as the facts on which it rests, appears in this country, in the absence of any statute.

from the books of the defendant to be correct, the As relating to the question of the exemption of a carrier from liability beyond a declared value, refer

*S. C., 22 Federal Reporter, 471.

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master may proceed to pass thereon without further receivership, or even the corpus of the property, under evidence, unless in his opinion further evidence is the order of the court, with a priority of lien; yet the needed, or some person in interest appears to contest discretion to do so should be exercised with very great the same.

care. The payment of such debts stands, prima facie, The master has acted upon this direction, and its on a different basis from the payment of claims arising propriety is now challenged. The exception will be under the receivership, while it may be brought within overruled. If no receiver had been appointed, the the priuciple of the latter by special circumstances. It company would settle with its creditors upon the is easy to see that the payment of unpaid debts for basis disclosed by its own books, and where the appli- operating expenses, accrued within ninety days, bue cation for a receiver contaius no charge of fraud and by a railroad company suddenly deprived of the condeceit on the part of the officers of the company, there trol of its property, due to operatives in its employ, is no impropriety in accepting the admissions con- whose cessation from work simultaneously is to be detained in its books as prima facie a fair basis of settle- precated in the interests both of the property and of ment with claimants. It would be an unnecessary the public, aud the payment of limited amounts due burdon and expense to require extrinsic and independ- | to other and connecting lines of road for materials and ent evidence. Full protection against improper | repairs, and for unpaid ticket and freight balances, the claims is secured by the right given to any party in in- outcome of indispensable business relations, where a terest to appear and contest, as well as by the duty stoppage of the continuance of such business relations imposed on the master to require testimony, if any would be a probable result in case of vion-payment, the appears to him necessary.

general consequence involving largely also the inter2. Claims for labor and supplies accruing since the est and accommodation of travel and traffic, may well default in payment of interest in 1881, more than two place such payments in the category of payments to years prior to the appointment of the receiver, have preserve the mortgaged property iu a large sense, by been allowed by the master, and exceptions are taken maintaining the good will and integrity of the enterto such allowauce. In the order appointing a receiver prise, and entitle them to be made a first lien. This no provision for the payment of claims was made, and view of the public interest in such a highway for pubit is conceded that there is nothing to show that since lic use as a railroad is, as bearing on the maintenance the default in the payment of interest there has been and use of its franchises and property in the hands of any diversion of income to permanent improvements. a receiver, with a view to public convenience, was the Now the broad proposition is laid down by counsel, subject of approval by this court, speaking through that unless a diversion as stated is shown, or unless Mr. Justice Woods, in Barton v. Barbour, 104 U. S. the court, as a condition of appointing a receiver, re- 126." quires the payment of certain claims, none can be pre- I think therefore that the mere omission to make ferred to the mortgage debt; that when the mortgagees the payment of these claims a condition of the aptake possession by a receiver, the income, as well as pointment of a receiver is no bar to their present althe property of the company, becomes theirs. I think lowance; and I may add this further suggestion: It the Supreme Court has decided against this claim. is said that the court, as a condition of the appoint

In Miltenberger v. Railway Co., 106 U. 8. 286; S. C., ment of a receiver, may in his discretion require the 1 Sup. Ct. Rep. 140, it appears that the receiver was payment of certain claims; but that discretion is not appointed August 26, 1874. On October 3, 1874, an an arbitrary one. It may not require the payment of order was made directing the payment of traffic bal- any claims that it desires, but only such claims as it is ances accruing before the appointment of the receiver, equitable should be paid-claims that in equity are and the order was sustained. quote at length from paramount to those of the mortgagees-and if it is the opinion, because it bears upon a question yet to be equitable that these claims should be paid prior to the considered:

mortgage debt, then what difference can there be in "In respect to the $1,000 due other and connecting the mere time of making an order therefor? In all lines of the road for materials and repairs, and for cases the payment of such claims rests on the fact that ticket and freight balances, a part of which, as stated, it is equitable that they should be paid, and oftenwas incurred more than ninety days before the 26th of times this equity can only be determined upon a August, 1874, the first petition stated that payment of full investigation into their nature-an investigation that class of claims was indispensable to the business which cannot be had at the time the receiver is apof the road, and that unless the receiver was author- pointed. ized to provide for them at once, the business of the

What claims are entitled to such equitable preferroad would suffer great detriment. These reasons

ence? The master has reported in favor of all claims were satisfactory to the court. In the examination by accruing since the default in payment of the interest the master of the accounts of the receiver evidence on the mortgage debt--a period of over two years. was taken as to the payment by him of items due, This seems to proceed upon the assumption that the when he took possession, for operating expenses, and mortgagees, by failing to take action, have made the of moneys due other and connecting lines for the mat- mortgagor company their agent to incur debts; have ters named. The report of the master shows that he impliedly consented that all such debts should take disallowed several items in the receiver's accounts, preference of their secured claims. I do not think claimed under the above heads, where the claims were that this principle is sound. There is no implied made on the ground that the creditors threatened not agency to that extent, and I do not think that the to furnish any more supplies on credit unless they rulings of the Supreme Court are based upon any such were paid the arrears. His action, sanctioned by the doctrine. The idea which underlies them I take to be court, in allowing items within the scope of the orders this: that the management of a large business, like of the court, appears to have been careful, discrimi- that of a railroad company, cannot be conducted on a nating, and judicious, so far as the facts can be arrived cash basis. Temporary credit, in the nature of things, at from the record. It cannot be affirmed that no is indispensable. Its employes cannot be paid every items which accrued before the appointment of a re- month. It cannot settle with other roads its traffic ceiver can be allowed in any case. Many circumstan- balances at the close of every day. Time to adjust and ces may exist which may make it necessary aud indis- settle these various matters is indispensable. Because pensable to the business of the road and the preserva- in the nature of things, this is so, such temporary tion of the property for the receiver to pay pre-exist- credits must be taken as assented to by the morting debts of certain classes out of the earnings of the gagees, because both the mortgagees and the public

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are interested in keeping up the road, and having it promisee, on the plea that the promise was invalid unpreserved as a going concern, and whatever is neces- der the statute of frauds, and which executory per. sary to accomplish this result must be taken as as- formance could not have been enforced by action. In sented to by the mortgagees. In this view, such 1864 M. purchased a lot of defendant and took a deed temporary credits accruing prior to the appointment thereof in reliance upon a representation of the latter, of the receiver must be recognized by the mortgagees that a strip of defendant's land, thirty-five feet wide, and such claims preferred. Now for what time prior adjoining on the south, was a highway, and upon bis to the appointment of a receiver may these credits be promise that he would open the same as such for the sustained? There is no arbitrary time prescribed, aud use of M., his family and assigns, and the public. Iu it should be only such reasonable time as in the na- the deed the lot was described by metes and bounds. ture of things and in the ordinary course of business No reference was made therein to any street or to any would be sufficient to have such claims settled and map. Plaintiff also in reliance upon said representapaid. Six months is the longest time I have noticed tion and promise built a house upon and near the as yet given. Ordinarily I think that is ample. Per- south bounds of the lot, as was understood between haps in some large concerns, with extensive lines of the parties during the negotiations. Defendant also road and a complicated business, a longer time might sold lots to other persons south of and abutting on be necessary. Certainly so far as the present road is said strip of land. Defendant soon after the convey. concerned, six months is ample. If any person per- ance, opened said strip as a street, as agreed, and the mits a claim to continue longer than that he certainly same was thereafter used and enjoyed as a street by has no right to be considered other than as a general M. and by plaintiff, his grantee, and by the public uncreditor, with no preference over a secured debt. So I til 1875, when defendant obstructed the entrance think the exceptions must be sustained as to all claims thereto and threatened to wholly close the same. In accruing prior to six months before the appointment an action by a grantee from M. to restrain such obof a receiver.

struction, held, that although the promise, while execOne other matter requires notice. Out of what shall utory, could not have been enforced, defendant, by these claims be paid? Primarily, of course, out of the opening the street in pursuance thereof, appropriated earnings of the road, and ordinarily out of such earn- the space as a way appurtenant to the premises, and ings alone. It is true, as appears from the quotation he could not subsequently recall the declaration. To just made from the Supreme Court, that cases may permit him to do so would operate as a fraud upon his arise in which such claims will be made a lien upon grantee and subsequent purchasers. The court will the corpus of the property, and payable out of the pro- enforce their rights by injunction, without requiring ceeds of receiver's certificates. But this can be done them to proceed for specific performance, assuming that only in exceptional cases, and where there is special a formal grant could not be compelled at the instance equity therefor. Apparently this matter has not been of the owners of the lot. Hervey v. Smith, 22 Beav. considered by the master; and if any order is desired 299; Talmadge v. East River Bank, 26 N. Y. 105; further than the payment of all these claims out of Dempsey v. Kipp, 61 id. 463. The right of the plaintiff the earnings of the road, the matter will be referred to maintain the action is questioned on the ground back to the master for inquiry as to whether there ex- that the right of way did not pass to her by the deed ists any special equity justifying the payment of these from the grantee, her husband. The way or street is claims, or any one of them, out of the proceeds of the not mentioned in the deed, nor is the word "appurtereceiver's certificates. The general rule, as I have nances " used. But the way was an apparent ease. stated, is that such claim should be paid out of the ment at the time the deed was executed, and if it was earnings. That is fair, because if no receiver were ap- then legally appurtenant to the lot, or in other words, pointed, and the claimants attempted by legal process if it was enjoyed by right by the plaintiff's husbavd as to enforce the collection of their claims, they could an appurtenance to the land, it passed by the conveyobtain no priority over the mortgages, but must still ance of the lot by metes and bounds, although not be subject to such mortgages. So the appoint- mentioued, and although the word ment of a receiver ought not to give them a priority was not used. Huttemeier v. Albro, 18 N. Y. 48; 2 which they had not before. It is true, a special equity,

Wash. 279. Newman v. Nellis. Opinion by An. as stated by the Supreme Court, may exist, making drews, J. such claims a prior lien upon the corpus of the prop- [Decided Nov. 25, 1884. ] erty; but as I have said, such equity ought to be af

CONTRACT-SERVICES-QUANTUM MERUIT.-Plaintiff firmatively shown. I believe this covers all the points

contracted to varnish clock vases for defendant at that were argued before me. The order therefore will

specified prices per case. The work was done in debe that the exceptions will be maintained to all claims

fendant's factory. The plaintiff received pay on reguaccruing more than six months prior to the appoint

lar pay-days for work completed, which had been ex. ment of a receiver. The exceptions to the other al

amined and pronounced satisfactory by defendant's lowances will be overruled, and an order entered that

agent. Defendant's factory was destroyed by fire, and they be paid out of the earnings of the road; and if in

a large number of the cases were burned upon which any particular claim it is thought by the claimant that

plaintiff bad performed work; some were completed, there is a special equity which justifies its payment

but not inspected; the others were uot finished. Held, out of the proceeds of the receiver's certificates, such

that defendant was liable for the work done, and claims will be referred back to the master for exami

plaintiff was entitled to recover the contract price for nation in that respect.

the completed work, and upon a quantum meruit for [See 9 Biss. 549; 99 U. S. 392.]

that unfinished. It matters not whether the relation
of master and servant existed between these parties,or

whether the plaintiff was a contractor with the deNEW YORK COURT OF APPEALS ABSTRACT.

fendant to do the work upon the clocks. Upon the

authority of the case of Niblo v. Binsse, 3 Abb. Ct. DEED-APPURTENANCES-RIGHT OF WAY-NO REF- App. Dec. 375, the defendant was liable for the work ERENCE IN DEED-INJUNCTION-SPECIFIC PERFORM- done, as the clocks belonged to it, were in the posses: ANCE. -A person morally bound to fulfill a promise to sion and under its control, and it was under an implied do a certain act or thing may not, after the act or obligation to furnish and keep them in hand, that the thing has been done, recall it to the prejudice of the plaintiff could complete his work upon them, and thus

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earu his compensation. Wheelan v. Ansonia Clock Co.

sureties. Hodgson v. Shaw, 3 Myl. & K. 183. The deOpinion per Curiam.

livery raised a legal presumption of an iuteut to pass, (Decided Nov. 25, 1884.]

and did pass this right to the transferee. While no SPECIFC PERFORMANCE-BENEFIT OF THIRD PERSON

one of the parties bas testified that this transfer was -POSSIBLE BENEFIT NOT SUFFICIENT.-A creditor of a

made under a mistake of law, and in the absence of firm cannot maintain an action upon an agreement

such proof we ought to presume that they knew the made with a firm by one not a member to pay a por

law, and acted in the light of that knowledge, it may

still be possible to infer from the facts that both partion; for instance, ove-quarter of its indebtedness, as so one creditor can show from the contract that it was

ties thought the note a valid and subsistivg obligation intended for his benefit or covers any part of his debt.

against all the signers, and had no conscious and defi

nite intent to transfer any thing else. But grant that It would be a very great exteusion of the doctrine of

they did not; does it follow that the right of contriLawrence v. Fox to give a right of action to a creditor

bution did not pass? It is argued that it did not pass for whose benefit the promise might or might not have

uuless the minds of the parties met over that specific been made. Iu Barlow v. Myers, 64 N. Y. 41, where

transfer, that there must have been a mutual intent the promise was to pay generally “the debts of Ran

to assign that identical right, and no such meeting of dall & Williams, without specifications of the particu

minds or mutual assent existed. But it was said in lar debts, or naming the creditors of the firm," atten

Schuyler v. Smith, 51 N. Y. 314, that the general rule tion was called to the fact that in this respect the case

undoubtedly is that it takes two parties to make an differed from all the cases in which the right of action

agreement, and that their minds must meet. But this had been sustained in behalf of the third party. But

rule is not of universal application. The law somewhile there it was possible to say that the creditors

times steps in and makes agreemeuts for parties which were sufficiently identified as belonging to a class all

they did not mutually intend. In the opinion in that of whom were to be paid, here, on the other hand, no

case pertinent illustrations are given, but some more class is named or described, and who was to be paid by the promisor, or to what extent, is left absolutely un-Dearly allied to the case in hand may be gathered from

the reports. In Oneida Bauk v. Ontario Bank, 21 N. certain and undetermined. We prefer to restrict the

Y. 490, a loan was made to a bank for which post notes doctrine of Lawrence v. Fox within the precise limits

were delivered which were illegal, but were afterward of its original application. But there is another rea

assigned by the lender to another bank, and it was son for saying that the defendant creditors had no le

held that the assignee could recover on the original gal interest in the promise of plaintiffs which could en

loan, although the action was on the post notes, and title them to contest the action for a reformation of

no transfer of the original loan had been made. There, the contract. We held in Dunning v. Leavitt, 85 N.

as here, there was no specific transfer of the right Y. 30, and again in Crowe v. Lewin, 95 id. 423, that the

which existed, and there, as here, a transfer only of right of the third party benefited by the promise, at

something utterly dead and worthless. What the parleast before he had accepted and adopted it, was of

ties had in their minds was the post votes, and yet the such derivative and imperfect cbaracter, if indeed it

law made the worthless paper carry to the assignee the attached at all, and was so subject to the relations and

valuable right when such a thought probably never equities of the original promisor aud promisee, that

entered the mind of either party. Cases have arisen the destruction of the consideration of the promise in

in which a mortgage, void for usury, has been assigned the one case, and the rescission or annulment of the

to third parties, and which was held to carry to the contract in the other, in actions to which the alleged | assignees the right to an old security not usurious, for beneficiary was not a party, and in which he had not

which the void mortgage was given. Gerwig v. Sitbeen heard, barred and prevented him from any right terly, 56 N. Y. 217. The reasoning in that case justiof action upon the promise. If we have construed the

fies much that we have said in tbis, but it especially pleadings and read the evidence correctly, that is the

shows how the law deems within the intent of the parcase here. There had been no acceptance or adoption

ties somethivg which was never present to their by word or act. Something of that kind was essen

thoughts, and in spite of some ineffectual thing which tial. Turk v. Ridge, 41 N. Y. 201; Garnsey v. Rogers,

was so present. In that case it was said that "it 47 id. 242; Vrooman v. Turner, 69 id. 285; Knicker

never was the intention of the assignor to retain any bocker Life Ins. Co. v. Nelson, 78 id. 151; Brewer v.

thing for himself in respect to the original debt," and Dyer, 7 Cush. 337. What it should be, whether a bare

with equal propriety we may say here that Snell never assent communicated to the promisor, or some decis

intended to retain for bimself, and to be enforced by ive act of the third party by which his original posi

him, a right of action against the sureties. Still another tion and rights have been changed in reliance upon class of cases are those in which a mortgage bas been the promise, before the equities between the contract

foreclosed by proceedings entirely ineffectual to pass a ors become burdened with a right to interfere and be

title, and where the purchaser's deed has been held to heard belonging to the third party, we do not now de

operate as an assignment of the mortgage. Jackson v. cide, because it is wholly unnecessary. It is enough Bowen, 7 Cow. 14; Robinson v. Ryan, 25 N. Y. 324. that these creditors, neither by word nor act, in any

In these instances there never was in the mind of manner assented to or adopted the promise before the

either party a conscious intention or purpose of assignaction for its reformation. They were therefore not

ing the mortgage. On the contrary, the actual intennecessary parties to that action, bad no legal interest

tion was to extinguish the mortgage and transfer the in it, and were properly denied the right of appeal.

land. In the former of these cases it is said “the inVan Buren v. Rice. Opinion by Finch, J. [Decided Nov. 25, 1884.]

tention was to pass a greater interest. If that failed,

it is no objection to the operation of the instrument NEGOTIABLE INSTRUMENT--ASSIGNMENT OF

as an assigument. Valeat quantum valere potest.In NOTE-RIGHT TO CONTRIBUTION PASSES. - Where ove

that maxim thus quoted lies the germinant seed of of several accommodation makers of a joint and sev

the whole doctrine. As the greater right includes the eral promissory note paid the same, and subsequently

lesser, even though they are of different character, the transferred and delivered it for a valuable considera- intent to convey the greater includes the intent to tion to a third person, held, that although the note, as convey the lesser, and if the former fails the latter an obligation, was extinguished by the payment, yet it

may prevail. So much shall pass as can pass. The remained in the hands of the maker, who paid it, the

facts that the transferee paid the full face of the note, evidence of his right to contribution from his co

and not merely the amount due for contribution, that

PAID

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the transferee paid the full interest for several years, for the introduction without duty of large numbers and that upou his failure the transferee proved the of articles as “household effects” which it is intended note for its full amount against him in bankruptcy, should pay duty. We do not find it necessary in this and received and credited a dividend thereon, were case to cousider any further the construction of the none of them inconsistent with an intent deducible words “other personal effects" in clause 3, because we from the bare transfer to assign and pass the right of place our decision on the grouud that tbis carriage was contribution. Dillenbeck v. Dyyert. Opinion by “household effects” of the plaintiff. The protest Finch, J.

claimed that the carriage was personal effects" in [Decided Nov. 25, 1884.)

actual use, under section 2505, and as such free, and
not subject to the duty imposed on it, but did not

claim it to be “household effects.” The solicitor-geuUNITED STATES SUPREME COURT AB- eral concedes that the objection to the protest is a STRACT.*

“bare technicality," and that its language could

hardly mislead the officers. A proper protest, as well CUSTOMS DUTIES—"HOUSEHOLD EFFECTS - CAR- as an appeal, are prerequisites to the right to sue. $ RIAGE USED ABROAD-Rev. STAT., $ 2505. -A carriage | 3011, Rev. Stat., as amended by the act of Februin use abroad for a year by its owner, who brings it to ary 27, 1877, ch. 69 (19 St. 247.) The protest must set this country for his own use here, and not for another forth “distinctly and specifically" the grounds of obperson, nur for sale, is “household effects" under sec- jection to the decision of the collector as to the rate tion 2505 of the Revised Statutes of 1874, p. 484 (2d ed.) and amount of duties. Section 2931, Rev. Stat. This and free from duty. Persons who dwell together as a provision was taken from the act of June 30, 1864, ch. family constitute a “ household." In New York a 171, $ 14 (13 St. 214), and is substantially the same as statute exempted from execution a cow owned by that in the act of February 26, 1845, ch. 22 (5 St. 727). any person being a householder.” In Woodward v. A protest is not required to be made with technical Murray, 18 Johns. 400, a judgment debtor, who owned precision, but is sufficient if it shows fairly that the a cow, had left his wife and children, they continuing objection afterward made at the trial was in the miud to reside in the house he had occupied. While they of the party, and was brought to the knowledge of the were on the road, removing to the house of the wife's collector, so as to secure to the government the pracfather, with the cow and their household furniture, tical advantage which the statute was desigued to sethe COW

seized on execution. The court cure. Converse v. Burgess, 18 How. 413; Swanstou v. held that the exemption continued long | Morton, 1 Curt. C. C. 294; Kriesler v. Morton, id 413;

the wife and children remained together Burgess v. Converse, 2 id. 216; Steegman v. Maxwell, “ as a family," and that they continued to be the 3 Blatchf. 365; Frazee v. Moffitt, 20 id. 267; S. C., debtor's household," and he the “householder." 18 Fed. Rep. 584. This protest apprised the collector The question for decision in this case is whether the that the carriage was claimed to be free, under section carriage of the plaintiff fell under either of these 2505, as a carriage actually used abroad over a year. heads: (1) Household effects in use of a person or a The "household effects " clause was in the mind of family from a foreign country, used abroad by the the party, and the collector could not fail to so underperson or the family not less than one year, and not stand. The protest was sufficient. Arthur v. Morgan. intended for any other person or persons, nor for sale; Opinion by Blatobford, J. (2) personal effects inot merchandise), nor for sale, of [Decided Dec. 22, 1884.) a person arriviug in the United States. The carriage had been in use as a family carriage, abroad, by the

PATENT" INFRINGEMENT -ACTION BY PATENTEE plaintiff as owner for more than a year. She came

AND LICENSEE AFTER SUIT BY PATENTEE.—(1) A licenfrom abroad after a temporary residence there of three

see of a patent cannot bring a suit in his own name, at years, and imported the carriage two weeks later for

law or in equity, for its infringement by a stranger: use here, and not for any other person, nor for sale.

an action at law for the benefit of the licensee must be Was it “household effects" or “personal effects” of

brought in the name of the patentee alone; a suit in the plaintiff? We think that it fell within clause 1,

equity may be brought by the patentee and the licensee aud was “household effects." In the provision re

together. Gayler v. Wilder, 10 How. 477, 495; Littlespecting the “household effects” of persons or fami

field v. Perry, 21 Wall. 205, 223; Paper Bag cases, 105 lies, there is an evident intention to include articles

U. S. 766, 771. In a suit in equity brought by the patwhich pertain to a person as a householder, or to a

entee alone, if the defendant seasonably objected to family as a household, which have been used abroad the non-joinder of the licensee, the Court might, 28 not less than a year, and are not intended for others, Judge Lowell did in Hammond v. Hunt, 4 Bav. & A. nor for sale. A carriage is peculiarly a family or

111, order bim to be joined. But when a suit in equity household article. It contributes in a large degree to

has been brought and prosecuted in the name of the the health, convenience, comfort and welfare of the

patentee alone, with the licensee's consent and coucurhouseholder or of the family. The statute is not lim

renoe, to final judgment, from which, if for too small ited to articles of household furniture, or to things

a sum, an appeal might have been taken in the name whose place is necessarily within the four walls of a

of the patentee, we should hesitate to say that the li

. house. Clause 2 above uses the words “personal and

censee, merely because he was not a formal plaintiff iv household effects.” This serves to show that by the

that suit, could bring a new suit to recover damages use of the words "household effects" alone in clause

against the same defendant for the same infringement. 1, in the same section of the statute, something is in

(2) It is a more serious question whether a decree in tended different from personal effects,” and that

favor of the patentee upou a bill in equity against one those words embrace articles which the words “ person for making aud selling a patented machine is a

'personal effects" do not cover. So too if the words

bar to a subsequent suit by the patentee against au“other personal effects” in clause 3 should be ex

other person for afterward using the same machine tended to embrace articles properly covered by the

within the term of the patent. A license from the words “household effects” in clause 1, such house.

patentee to make, use and sell macbines gives the hold effects would come in free, although not used

licensee the right to do so, within the scope of the abroad for a year, and the door would be opened wide

licerise, throughout the term of the patent; and has

the same effect upon machines sold by the licensee un* Appearing in 5 Supreme Court Reports.

der authority of his license, that a sale by the patentee

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