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restraints inay be imposed for the attainment of this Until the Legislature, in the exercise of its inherent eud which may be deemed necessary by the law-mak- powers to enact police and health laws, prohibits the ing power, even though they amount to absolute pro- | manufacture of oleomargariue, it seems to me a citi. hibition, and the propriety of such restrictions is a zen has a right to make any pure and wholesome ar legislative question entirely free from all judicial con- ticle of food and sell it for what it actually is, and it is trol. The enactment of this law in question was immaterial what lawful use shall be made of it aftertherefore within the scope of legislative power as the ward. If a man is too poor to buy good butter I see same has been delegated to the Senate and Assembly no objection to his using oil, cheese or honey, or any by the people of the State in the fundamental law. It other substitute for butter. A law prohibiting the prohibits the manufacture and sale of oleomargarine making of an iron rake to be used as a substitute for as an article of food in place of butter, and the defend- one made entirely of wood could be passed with just ant has been convicted of a violatiou of its provisions, the same legal effect, as a law providing that oleomarand in our view the conviction must be affirmed. garine should not be made to be used as a substitute BARNARD, P. J., concurred.
for butter. I do not claim that the Legislature cannot PRATT, J., dissenting. I am constrained to dis. | do all this, but that it can only do it to protect the sent from the views of a majority of the court public health. Assuming even that it may pass such a in this case upon the following grounds: If sec- law, if in the exercise of its discretion it deems it best tion 6 of the act under which the defeudant was for the public health, and that the courts cannot reconvicted is to be construed as an absolute pro- view such an exercise of discretion, however unwise it hibition of the manufacture of pure and whole- | may be, yet this law was not passed under the some oleomargarine, unconnected with any de- | exercise of any such discretion or for any such pursign to deceive the public or simulate dairy butter, it pose, uor can we indulge in the presumption that such is unconstitutional as being within the prohibition of was the purpose of the act when we read the title or article 1, section 6 of the State Constitution.
the act itself. There are certain well settled principles to be kept in view in consideriug this class of questions. Before NEW YORK COURT OF APPEALS ABSTRACT. a statute can be anvulled by the courts its repugnancy to the Constitution should be clearly demonstrated. Neither can courts sit in review of the discretion of
BANKRUPTCY — “FIDUCIARY CAPACITY UNAUthe Legislature, or determine the wisdom or propriety
THORIZED SALE BY BROKER--REQUEST TO SUBMIT TO of legislative action, and every intendment is in favor purchased by him for a customer, although a conver
JURY.-An unauthorized sale by a broker of the stock, of the validity of statutes,
In Bertholf v. O'Reilly, 74 N. Y. 516, it was held by sion, does not constitute such a fraud as is conthe Court of Appeals “that no law can be pronouvсed templated by the Bankrupt Act. Hennequin v. Clews, invalid for the reason simply that it violates our no
77 N. Y. 427; Palmer v. Hussey, 78 id. 303. Neither tions of justice, is oppressive aud unfair in its opera
under the circumstances was the insolvency of the detion, or because in the opinion of some or all of the fendants at the time of the sale conclusive evidence of citizens of the State, it is not justified by public neces
a fraudulent intent. We do not think that the testisity or designed to promote the public welfare. We mony conclusively proved the fraud alleged so as to repeat, if it violates no constitutional provision it is
entitle the plaintiff to a direction of a verdict in his valid and must be obeyed.” It is equally well settled
favor. At most, the evidence raised a question of that whether an action is obnoxious to the Constitu- fact, which might have been submitted to the jury. tion is it question for the court to
No request to that effect was made, but both parties
pass upon, and for that purpose it is competent for requested the court to direct a verdict. Under these the court look the circumstances and
circumstances it has often been held that the parties purpose under which and for which
must be deemed to have submitted the questions of
act is passed. That the substance from which oleomar- fact, if any, to the decision of the court, and waived garine is made is property cannot be disputed. Neither the right to go to the jury, O'Neill v. James, 43 N. Y. can it be claimed that this act was passed to protect or
84, and subsequent cases. The decision of the court preserve the public health, for the reason that it therefore stands in the place of a verdict of the jury. nowhere appears that such was the purpose; and an
The evidence being such that a verdict for the defendentirely different purpose does appear in the title. If
ants could have been sustained, the direction to find we are to seek for an expression of the purpose in the such verdict was not error under the circumstances. act itself, it is plain that its object is to create and
Stratford v. Jones. Opinion by Rapallo, :J. protect a monopoly in the manufacture of dairy but- [Decided Jan, 20, 1885.] ter and prevent any successful competition therewith. WATER AND WATER-COURSES--PRESCRIPTIVE RIGHT-In this view it deprives the owner of the substance EQUITABLE ACTION TO QUIET TITLE--INJUNCTIONfrom which oleomargarine is made of the beneficial PLEADING -- JOINDER OF DEFENDANTS.- Defendants enjoyment of his property and the fruits of his lawful threatened to float a large number of logs over the labor.
plaintiff's lands, using the stream and its banks for It was held in re Peter Jacob, 19 Week. Dig. 533, that that purpose, and they would then do some damage to it is not constitutionally competent for the Legisla- the banks of the stream and other lands of the plaintture to deprive by any arbitrary evactment a laborer iff. They would occupy the stream for several days. in any lawful vocation of his right of work, and of en- Not only this, they claimed the right to float the logs, joyment of the fruits of his work, in his residence or and asserted, in substance, that they would do so in his own way, except for purposes of police or health whenever they chose to. By continuing to exercise regulations.
the right they might, by lapse of time, be able to prove It is true that the statute then under consideration and establish a right by prescription. They not only recognized the legality of the labor and only restricted claimed a right for themselves but for the public-for it to certain places, while this prohibits all the labor everybody. That in such a case, upon such facts, a or manufacture if the article is to be used thereafter plaintiff may maintain an equitable action to quiet as a substitute for butter, but the principle is the same. his title and settle his rights and prevent the threatIn both cases the citizen is deprived of the beneficial ened injury is abundantly settled by authority. Angell use of his lawful property.
ou Wat. Cours., $ 449; 2 Story Eq. Jur., $ 927; 3 Pom.
Eq. Jur., $ 1351; Holsman v. Boiling Springs Bleach- cease the premises, or the principal only realized from ing Co., 14 N. J. Eq. 335; Campbell v. Seaman, 63 N. a sale, should be conveyed to the issue of her marT. 518; Johnson v. City of Rochester, 13 Hun, 285; riage with the grantor's son living at the time of her Swindon Water-Works Co. v. Wilts. & Berks. Canal decease or their legal representatives. The grantee died Co., L. R., 7 H. L. 697; 14 Eng. Rep. 100; Clarnes v. without having sold, but devised the same to her son, Hofferthau, Petrie's L. Rep., 8 Ct. App. 125, 142; with power to her executor to sell and convey. Iu an Goldsmid v. Tunbridge Wells Imp. Com., L. R., 1 Ch. action to compel specific performance of a contract to App. Cas. 349, 354. This is not a case where the de- purchase said real estate plaintiff claimed uuder a confendants threatened only to commit a single trespass, veyance from said executor. Held, that whatever but they threatened to commit, and claimed the right construction is given to the instrument, the grantee to repeat the trespass every year. Here a preventive still takes all of the interest which the grantor iuaction was proper to prevent au irreparable injury tended to confer upon her, and by confining her estate within the meaning of the equitable rule, and also to to that of a life tenant only, as is clearly contemplated avoid a multiplicity of suits. (2) The defendants were by the deed, a door is closed against the possible de. properly united. They claimed a common right hos- feat of the expressed intention of the grantor to transtile to the plaintiff. They asserted a public right com- mit the corpus of the estate to his owu descendants. mon to many. In such a case all the parties asserting Goodtitle v. Bailey, Cowp. 600. If it be held that she the common right may be united as defendants in an takes the fee of the land, the covenant in the deed action by one who seeks to overthrow the common would restrain her from impairiug the principal of the claim, and establish his right against all claimants. estate during her life, and it her interest is adjudged Varick v. Smith, 5 Paige, 137; Dimmock v. Bixby, 20 to be a life estate merely, she would of course be enPick. 368, 377 : Woodruff v. North Bloomfield, etc., 8 titled to enjoy its rents, issues and profits during her Saw. 628; Hill v. Newington, 57 Cal. 56. Myers v. life. We think that a construction which gives to Phillips. Opinion by Earl, J.
Mary Livingston De Peyster a life estate only effectu[Decided Dec. 9, 1884.]
ates the desigu of the grantor, and is abundantly sup
ported by authority. Jackson v. Myers, 3 Jobus. 387; DEED-CONSTRUED AGAINST GRANTOR--WHEN RULE
Moore v. Jackson, 4 Wend. 68; French v. Carhart, 1 N. DOES NOT APPLY- INTENT TO GOVERN-LIFE ESTATE OR Y. 96; Post v. Hover, 33 id. 593; Hunt V. Johuson, 44 FEE-POWER TO SELL-DISCRETION-MAY NOT BE PEL- id. 27; Saunders v. Hanes, id. 354; Terry v. Wiggins, 47 EGATED.-(1) The rule governing coutroversies be
id. 512; Wager v. Wager, 96 id. 164; Smith v. Bell, 6 tween grautor and grantee, by wbich the language of Peters, 512. It will be observed that while the power a conveyance is required to be taken most strongly to sell is specially mentioned, careful provisions are against the grantor, has no application when the dis- algo iuserted for the disposition of the proceeds of the pute occurs between parties claiming under the same sale. They are to be immediately invested in real or couveyance, and are each entitled to the benefit of the
personal property, and the principal is to be conveyed same rule of construction. If the disposition which unim paired to the issue upon the decease of the granthe owuer of property desires to make does not con
tee of the power. It appears therefore that its exertraveno any positive prohibition of law, his control cise after the death of the grantee was impliedly forover it is unlimited, and the only office which the bidden, and that the grantee had no disposing power courts are called upon to perform in construiug his
over the property conferred upon her. Her interest is trausfers of title is to discover and give effect to his coufined to the enjoyment of the rents, issues, and intentions. In the case of repugnaut dispositions of profits during her life. These provisions do not authe same property contained in the same instrument,
thorize either of the expressed trusts permitted by the the courts are from necessity compelled to choose be- statute, and are therefore ineffective to create such an tween them; but it is only when they are irrecoucil- estate, but do contain an authority to do an act in reably repuguant that such a disposition of the question lation to lards which the owner might himself lawis required to be made. If it is the clear intent of the
fully perform, and there being other persons than the grantor that apparently inconsistent provisions shall grantee entitled to the benefits, if any there are, deall stand, such limitations upon and interpretatious of rivable from the performance of the act, it takes effect the literal signification of the language used must be
as a power in trust. 3 R. S. (7th ed.) 2188, SS 74, 95; imposed as will give some effect is possible to all of the Russell v. Russell, 36 N. Y. 587; Delaney v. McCorprovisions of the deed. Salisbury v. Andrews, 19 Pick. mack, 88 id. 174. This power is a general power, since 250; Norris v. Beyea, 13 N. Y. 273; Jackson v. Blod- it authorizes the grantee to convey the property to any gett, 16 Johus. 178. “It is a cardinal rule iu the con- alienee whatever (877), but it is neither imperative nor struction of contracts, that the intention of the parties beneficial, since its exercise is left altogether to the is to be inquired into, and it not forbidden by law is discretion of the grantee, and other persons than herto be effectuated, and whenever the language used is self are to be benefited by its execution ($$ 79, 96), susceptible of more than one interpretation, the courts while the absolute power of disposition is vested in the will look at the surrounding circumstances existing donee. Yet under the statute the express directions when the contract was entered into the situatiou of given as to the investment as to the proceeds, and the the parties, and of the subject-matter of the instru- limitations imposed as to her authority to control its ment." French v. Carhart, 1 N. Y. 102. This rule is ultimate destination, show that it was not a power to now by statute made imperative upon judicial tribu- be executed for her sole benefit, and the creation of a pals, and cannot be evaded when the intention of the fee in the grantee of the deed by implication is theregrantor is made clearly apparent by the language of fore precluded (S$ 81, 85). (2) The terms of the power the conveyance. 3 R. S. (7th ed.) 2205, $ 2. De P. ex- confer its exercise upon the donee alone, and being a ecuted to the wife of his son a deed containing words trust to sell lauds aud invest the proceeds, it was sufficient and appropriate to convey an absolute fee. purely a discretionary power, whose execution could The deed declared that it was made by way of not be delegated to another, or restrained or enforced advancement to be charged against the share of the upon the application of any of the parties. Newton v. sou in the grantor's estate, and to enable the grantee Bronson, 13 N. Y.592; Lewin on Trusts, 296; Mayor of to sell and convey in fee simple if she should desire so New York v. Stuyvesant, 17 N. Y. 42; Perry on Trusts, to do. It also contained a covenant upon the part of 287, 408. The power and the trust connected therethe grantee, that upon sale by her she should cause with necessarily determine upon the death of the the proceeds to be properly invested, and at her de- grantee, and the property after that event went to the
remaindermen, discharged of auy authority over it by the old corporation upon the property transferred will any person whatsoever. Coleman v. Beach. Opinion be prior in right to that of bondholders with notice. by Ruger, C. J. [Matters calling for discretion may The doctrines laid down in the following cases estabnot be delegated. 20 Eng. Rep. 523, 4; 29 Am. Rep. lish respondent's claim to priority against the specific 108; 75 Y. Y. 388; 19 W. Dig. 472; 53 Miss. 128-132; 22 property transferred: Thomas v. Railroad Co., 101 Eng. Rep. 301.]
U. S. 82; Hibernia Ins. Co. v. St. Louis & N. 0. [Decided Jan. 20, 1885.]
Transp. Co., 13 Fed. Rep. 516; Harrison v. Union Pac.
Brum v. Merchants' Co., 16 id. 140; Abbott v. Ameri-
controlling proposition. The old corporation was cre
ated by special act of the Geueral Assembly in 1857. REMOVAL OF CAUSE-CASE ARISING UNDER LAWS OF Its provisions were minute and specific in many essen. UNITED STATES. -Plaintiffs sued defendaut, a United tial details, not only as to obligations and rights of States marshal, in the State court, for trespass in stockholders, but as to their duties, respectively, to seizing and carrying away books of account belonging each other and to the publio, particularly to the State, to them, but the declaration failed to allege that de- to which annual reports were to be made, etc. The fendant acted in his official capacity. Defendant de
coustruction of the road was to be commenced within murred generally, and thereupon filed a petition for ten years and completed within twenty years thereremoval of the case to the Federal court, alleging in after; a fair record of the whole expense of construct. his petitiou that he was a United States marshal, and ing the road to be kept, with the privilege reserved to acted under an attachment issued by the United States the State to purchase the same, at rates named, at the Circuit Court in making the alleged seizure, “if any expiration of fifty years. It is clear that the action of seizure actually occurred," and that the suit was the corporation in transferring all its property thus one arising under the laws of the United States, and formed was beyond its corporate authority, and evainvolved the construction of such laws. Held, that the sive of its chartered obligations. The conclusive effect record did not present a case withiu the jurisdiotion
of what was done was to fasten a lien on the assets of the Federal court, and that the cause was not re- transferred prior in right to the mortgages. Cir. Ct., movable. Railroad Co. v. Mississippi, 102 U. S. 135,
E. D. Mo., Oct., 1884. Blair v. St. Louis, etc., R. Co. 141. The case of Gold Washing & Water Co. v. Keyes, Opinion by Treat, J. 96 U. S. 199, was very much like the present. That
TRADE-MARK-PARTIES OF SAME NAME-DECEPTION was a bill in equity to restrain the defendants from
-INJUNCTION.-Wbile a party cannot be enjoined proceedings alleged to constitute a nuisance, to which
from honestly using his own name in advertising his there was a general demurrer. The cause was re
goods and putting them on the market, where another moved from the State court to the Circuit Court of the
person, bearing the same surname, bas previously used United States as a suit "arising under the Constitu
the name in connection with his goods in such mauner tion or laws of the United States." Upon the plead
and for such length of time as to make it a guaranty ings alone, as was said by the Supreme Court, it was
that the goods bearing the name emanate from him, he clear the defendants had not brought themselves
will be protected against the use of that name, even by within the statute. The complaint simply set forth
a person bearing the same name, in such form as to the ownership by the complainant of his property, and
constitute a false representation of the origin of the the acts of the defendants which it was claimed caused
goods, and thereby inducing purchasers to believe that a private nuisance. No right was asserted under the
they are purchasing the goods of such other person. Constitution or laws of the United States, and nothing
Cir. Ct., E. D. Wis., Oct., 1884. Landreth v. Landreth. was stated from which it could in any manner be in
Opinion by Dyer, J. ferred, that the defendants sought to justify the acts complained of by reason of any such authority. It re- TAXATION-INTER-STATE COMMERCE-LOGS IN TRANsulted therefore that the validity of the judgment of SIT.-Logs cut on lands owned by a Minnesota corpothe Circuit Court remanding the cause, and brought ration in Wisconsin, and hauled down to a river, and iuto question by the writ of error, depended upon the piled on the ice to await the opening of the river to be sufficiency of the facts set forth in the petition for re- floated down into Minnesota, to be there manufacmoval. “For the purposes of the transfer of the tured into lumber, cannot be considered as in transit cause," said the court (p. 202), “the petition for re- from one State to another in a commercial sense, and moval, which the statute requires, performs the office may be assessed and taxed in Wisconsin. The mere of pleading. Upon its statements, in connection with intention in such a case, where there has been no sale the other parts of the record, the courts must act in or transfer of shipping out of the State, at some indefideclaring the law upon the question it presents. It nite time, depending upon some circumstance so unshould therefore set forth the essential facts uotother- certain as the weather and the floods, would not wise appearing in the case, which the law has made amount to putting the property in actual or legal conditious precedent to the change of jurisdiction. If transit so as to bring them within the priuciple recog. it fails in this it is defective in substance, and must be nized in the adjudged oases. See State v. Carrigan, 39 treated accordingly.” Cir. Ct., E. D. Mich., July, N. J. L. 35; Blount v. Monroe, 60 Ga. 61; People v. 1884. Rothschild v. Matthews. Opinion by Mat- Niles, 35 Cal. 282; Carrier v. Gordon, 21 Ohio St. 605; thews, J.
State v. Eugle, 34 N. J. L. 425; Ogilvie v. Crawford CORPORATION-FRAUDULENT CONVEYANCES-MORT
Co., 7 Fed. Rep. 745; Passenger cages, 7 How. 416; GAGE--PRIORITY-ULTRA VIRES.-(1) A transfer of all
State Freight Tax case, 15 Wall. 232; State Tax on the assets of one corporation to another, whereby, Railway Gross Receipts, id. 284; Conley v. Chedic, 7 through a mere charge of name, an attempt is made
Nev. 336; Hurley v. Texas, 20 Wis. 665; Erie Ry. F. to defraud creditors, or which would operate a fraud,
State, 31 N. J. L. 531; Brown v. Maryland, 12 Wheat. will not be upheld as against creditors, and the trans
442; Crandall v. Nevada, 6 Wall. 35; Almy v. State, 24 feree, if he takes with notice, takes cum onere. (2) If
How. 169. Cir. Ct., W. D. Wis.,
1884. Nelson in such a case the transferee mortgages its property to
Lumber Co. v. Lorain. Opinion by Burn, J. secure the payment of bonds, the lien of creditors of
TAXATION-CHARTER EXEMPTION OF CAPITAL STOCK * Appearing in 22 Federal Reporter.
OF RAILROAD-EXEMPTION OF INDIVIDUAL INTERESTS
OF STOCKHOLDERS OBLIGATION
PATENTS-LICENSE-RECEIVER-PRACTICE-COMITY POWER OF LEGISLATURE.-(1) The perpetual exemp- OF COURTS.-(1) A license to construct and use a pattion of the capital stock of a railroad corporation from ented invention is personal to the licensee, and theretaxation by the provisions of its charter covers the in- ceiver of a firm to which such a license has been dividual interest therein of the stockbolders; and a granted will not succeed to the firm's right. Oliver v. subsequent law imposing a tax on the shares owned by | Rumford Cheese Works, 109 U. S. 75. (2) Where a dethem impairs the obligation of the contract between mand against a receiver does not involve the adminis. them and the State, and is unconstitutional and void. tration of the trust committed to him, but arises from Union Bank v. State, 9 Yerg. 490; Railroad Co. v. his having taken unlawful possession of property not Gaines, 97 U, S. 67. In Farrington v. Tonnessee, 95 included in the trust, a suit will lie against him perU. S. 679, the bank charter provided that the bank Bonally as for a trespass, even though he took posses"shall pay to the State an annual tax of one-half of sion of such property under an order of court. Hartell one per cent. on each share of the capital stock sub- v. Tilghman, 99 U. S. 547; Bartou v. Barbour, 104 id. 126. scribed, which shall be in lieu of all other taxes." It (3) In such cases, where the receiver has acted under an was held that the words "in lieu of all other taxes," order of a State court in taking possession of the propas thus used, meant in lieu of all other taxes that erty, an application should be made to such court to might be imposed on that subject of taxation, viz., the correct its order before resorting to an action of tresshares of the capital stock; and that accordingly it ex- pass on the case in a Federal court. (4) If that course oluded a tax on those shares assessed upon them
is not followed the Federal court will suspend proagainst the individual shareholder as his property. ceedings before it until the application to the State Mr. Justice Swayne, delivering the opinion of the court is made, in order to avoid a conflict of jurisdiccourt, said: “There is no question before us as to the tion. Cir. Ct., E. D. Mo., Oct., 1884. Curran v. Craig. tax imposed on the shares by the charter, but the Opinion by Treat, J. State bas by her revenue laws imposed another and an
MARINE INSURANCE PAYMENT OF PREMIUMS-DEadditional tax on these same shares. This is one of
LIVERY OF POLICY CONTAINING RECEIPT-RATIFICAthose other taxes' which it had stipulated to forego.
TION OF AGENT'S ACTS-LEX LOCI-GENERAL LIEN-UNThe identity of the thing doubly taxed is not affected by the fact that in one case the tax is to be paid vica
PAID PREMIUMS.-(1) The delivery of the policy of inriously by the bank, and in the other by the owner of
surance to the assured, containing a receipt for the the share himself. The thing thus taxed is still the
premium, estops the company, for the reason that the same, and the second tax is expressly forbidden by
receipt is conclusive evidence of payment, to the exthe contract of the parties. After the most careful
teut at least that such payment is necessary to give consideration we can come to no other conclusion).
validity to the contract. The company will not be Such, we think, must have been the understanding and
permitted to say that no contract was made. 3 Kent
Com. 260; Provident Ins. Co. v. Fennell, 49 Ill. 180; intent of the parties when the charter was granted
Basch v. Humboldt Ins. Co., 35 N. J. L. 429. (2) When and the bank organized. Any other view would ignore the covenant that the tax specified should be in
the unauthorized act of an agent is ratified by the ‘lieu of all other taxes;' it would blot those terms
principal, the ratification relates back to the time of from the context, and construe it as if they were not
the inception of the transaction, and the act is treated a part of it."' (2) The Legislature of a State may dis
throughout as if it were originally authorized. Story tinguish between the interests of a corporate body in
Ag., & 244. See also Soames v. Spencer, 1 Dowl. & R. its capital or capital stock and that of the individual
32 (16 E. C. L. 14); Moss v. Rossie Lead M. Co., 5 Hill, shareholder as separate gubjects of taxation; so that
137; Lawrence v. Taylor, id. 107; Hankins v. Baker,
46 N. Y. 670. The subject of the insurance was a Canone may be taxed and the other exempt, or both governed by the same rule of taxation or exemption, at
adian vessel. The note, payable at a Canadiau bank, its discretion. Cir. Ct., M. D. Tenn., 1884. State of
was dated and signed in Canada. The policy, containTennessee v. Whitworth. Opiniou by Matthews, J.
ing a receipt for the premium note, was delivered in
Canada. The ratification, if ratification were needed, BANKRUPTCY-PARTNERSHIP CREDITORS-PARTNER related back to what took place in Canada. It must ASSUMING FIRM DEBTS.-(1) The rule that the joint es. be held therefore that the contract was made in Cantate must be applied to pay the joint debts and the ada, and as a necessary result, that the case must be separate estate to pay the separate debts is only appli
determined by Canadian law. Heebner v. Eagle Ins. cable where the joint estate as well as the separate es
Co., 10 Gray, 131, 143; Male v. Roberts, 3 Esp. 163; tate is before the court for distribution. U.
Thwing v. Great West. Ins. Co., 111 Mass. 93; Wood Lewis, 13 N. B. R. 33. And where there is no joint es
Fire Ius., S 93. (3) The law of New York creating a tate the firm creditors, under such a state of facts as
lieu in favor of underwriters for unpaid premiums of exist here, have a right to share in the separate estate.
insurance has no relation to insurance on a foreign Blum. Bankr. 268; In re Pease, 13 N. B. R. 168. There vessel, the contract for which is made in a foreign is no joint estate here; for by agreement the assets of country. Moores v. Lunt, 4 T. & C. 154; affirmed, 60 the firm of Lloyd, Hamilton & Co. still remaining in N. Y. 649; Brookman v. Hamill, 43 id. 554. Having no specie, are the separate estate of Wm. M. Lloyd, the privilege in Canada, there can be none anywhere. I same as if they had always beer his individual prop
am aware however that there is not entire unauimity erty. Colly. Partn., $ 894 (5th Am. ed.); Bullitt v. M. among the authorities upon the last question consid, E. Church, 26 Penu. St. 108; Howe v. Lawrence, 9 ered, namely, whether the law of the contract or the Cush. 553. And it is quite immaterial that the assign
law of the forun should be controlling. See The Magees bave kept a separate account of these assets. (2) gie Hammond, 9 Wall. 435, 451, 452; Scudder v. Union Where one of the partners takes the firm assets and Nat. Bank, 91 U. S. 406, 412, 413; Harrison v. Sterry, 5 agrees to pay the joint debts, he becomes individually Cranch, 289; The Union), 1 Lush. 137; Ogden v. Saunliable; and the partnership creditors may, at their op
ders, 12 Wheat. 213, 361. (4) No general lien is cretion, prove against his estate iu bankruptcy, and share ated by the maritime law in favor of the insurer for pari passu with the separate creditors. Blum. Bankr. unpaid premiumg. The affirmative of this proposition 563; In re Downing, 3 N. B. R. 181, 183; In re Long, 9 is held by the following authorities, where the lien is id. 227; In re Rice, id. 373; In re Collier, 12 id. 266- relegated to the lowest class of maritime privileges. Dist. Ct., W. D. Penn., Sept. 1884. Matter of Lloyd. The Dolphin, 1 Flippin, 580; affirmed in a qualified Opinion by Acheson, J.
way, id. 592; The Illinois, decided on the authority of
The Dolphin, 2 id. 383; The Guiding Star, 9 Fed. Rep' attached to the office is not promised to him by ex521; affirmed, 18 id. 263. In this case the lieu was sus- pression or legal implication, and the services are vol. tained because given by a State statute upon vessels untarily rendered. Dill. Mun. Corp., $S 168, 169, and navigating the waters of the State or bordering cases cited; Hoboken v. Gear, 3 Dutoh. 265; Smith v. thereon. The following cases decide against the lien : Mayor, 37 N. Y. 518. Meehan v. Freeholders of HudThe Jenny B. Gilkey, 19 Fed. Rep. 127; The John T. son. Opinion by Knapp, J. Moore, 3 Woods, C. C. 61; The Robert L. Lane, 1 Low. 388, where the question is referred to, but not decided. CONSTITUTIONAL LAW-REGULATION OF COMMERCESee also the note to The Dolphin, in which the reporter LICENSE FEES.-The provisions of the act for the better bas collected numerous authorities bearing upon the enforcement in Maurice river cove and Delaware bay subject. The argument against the liens seems to me of the act entitled "An act for the preservation of to have the most weight. That the contract of insur-Clams and oysters," is not repugnant to section 8, artiance upon a ship is in its nature maritime is no longer cle 1, of the Constitution of the United States, as an an open question. Insurance Co. v. Dunham, 11 Wall. attempt to regulate commerce between the States. 1. It is however a contract for the personal indem- The imposition of a license feel upou ail boats engaged nity of the insured. The credit is given to him, not in planting or taking oysters in the said place, is not to the ship. The principle upon which the law recog- obnoxious to the requirement in the State Constitunizes a lien for necessaries is that the ship may thus be tion that property shall be assessed under general laws enabled to engage in the competitions of commerce. and by uniform rules according to its true value. The Security is given the material-man, it is true, but the Constitutions of other States contain provisions apachief benefit is to the ship. It enables her to sail. A logous to the requirement contained in ours, and contract of insurance in no way aids the ship. She wherever the courts have been called upon to construe sails no better and no faster because of the insurance. them in regard to their application to assessments It puts no steam in her boilers and no wind in her sails. upon occupations in the form of license fees, they have Dist. Ct., N. D. N. Y., 1884. Matter of Insurance Cos. been held inapplicable to the latter class of imposts. Opinion by Coxe, J.
The almost, if not quite, unbroken course of decision
has been in this direction, that these impositions are NEW JERSEY SUPREME COURT ABSTRACT.*
not taxes within the purview of the constitutional requirements. People v, Thurber, 13 Ill. 554; Cole v.
Hall, 103 id. 30; Chilvers v. People, 11 Mich. 43; CONVERSION-DEMAND AND REFUSAL TO DELIVER.- Youngblood v. Sexton, 32 id. 406; State v. Henry, 26 Where goods have beeu deposited with a person for
Ark. 523; Bobler v. Schneider, 49 Ga. 195; People v any purpose, and any other person than the depositor McCreery, 34 Cal. 432; Cooley Tax., $$ 401, 402, 427. demands them of the bailee, the latter is not liable to
Johnson v. Loper. Opinion by Reed, J. an action of trover until he refuses to deliver after a reasonable time taken and opportuuity given to ascertain the true ownership of the property. Lee v. Bays, 18 C. B. 607 ; Carroll v. Mix, 51 Barb. 212; Alexander
IOWA SUPREME COURT ABSTRACT. v. Southey, 5 B. & Ald.247; Isaac v.Clark, 2 Bulst. 314. In this case the refusal to deliver the goods to the real
MASTER AND SERVANT-RISKS OF EMPLOYMENTowner was not grounded upon an expressed doubt as to the wife's interest in them, but was accompanied by
PERSONAL INJURY-MEASURE OF DAMAGES.-(1) The an unqualified denial of her title, and an assertion that dangers from snow-banks are inseparable from the they belonged to her husband. This refusal was a con
operation of railroads when snow prevails and is reversion. Hinckley v. Baxter, 13 Allen, 139; Thomp
moved from the track, and employees when they enter son v. Rose, 16 Conn. 71; 2 Greenl. Ev., $ 644. Wykoti railroad company is not chargeable with negligence in
the service assume the risk of such dangers, and the v. Stevenson. Opinion by Reed, J.
leaving the accumulations of snow which it remores OFFICER--USURPER OF PUBLIC OFFICE-NO ACTION from its tracks in proximity thereto, even though FOR SALARY.-An unauthorized person gaining pog. some danger to its employees engaged in the opersession of a public office by force or fraud has no right ation of its trains is created thereby. Dowell v. Burof action against the public for the prescribed fees or lington, C. R. & N. R. Co., 17 N. W. Rep. 901, folsalary for services rendered during such usurpation. lowed. (2) In an action by the administrator of a fireThe reasons which protect one who has performed the man against a railroad company for damages for negliservices belonging to a public office, under an appoint- gently causing intestate's death, in estimating the ment apparently regular and legal, in ignorance of and damages sustained it is proper to consider his calling without the means of ascertaining defects in the title, at the time of his death, his ability, the amount of his and where his refusal to serve would leave a vacancy earnings, and like circumstances, and the estimate in office, whether such reason be weak or strong, have should be made with reference to such facts as actuno application to a case like this. In such a case we ally existed, and such as it is reasonably certain would cannot doubt that in some form the officer de jure have occurred in the future but for his death; but it would be entitled in law to demand and have compen- is error to allow evidence that when firemen had suffisation for the injury done him by such an intruder. If cient experience, and had acquired the requisite skill, payment be made to the officer de facto the public will they were sometimes employed as engineers, aud paid be protected from further claim, as the disbursing offi- an increased compensation for their services. Brown, cer is not bound to know the title by which an actual Adm'x, etc., v. Chicago, R. I. &P. R. Co. Opinion by incumbent holds, and the rival claims to the fuud Reed, J. must be litigated between the individual claivnants; [Decided Oct. 24, 1884.] but upon suit brought by the incumbent against the public for pay, his title will be inquired into. Dolan v.
MORTGAGE-PAYMENT OF TAXES Mayor, etc., of New York, 68 N. Y. 274. And he must CLAIM OF LIEN-NOTICE.—(1) When a mortgagee, under establish his right to be paid as between the plaintiff a mortgage that provides that he shall have the secuand the public represented by the defendant. Stuhr rity of the mortgage for any taxes he may have to pay v. Curran, 15 Vr. 181, distinguished. Compensation treats his purchase as a mere payment of the taxes,
on the premises, bids in the land at a tax sale, the law *To appear in 46 N. J. L. Reports.
and gives him a lien therefor under the mortgage, and