Слике страница
[ocr errors]

in by the deceased as well as by the complainant. It purchased, and may therefore make a valid lease of goes to show that the contract was not considered by them for any term af years, though extending beyond either party as abandoned, but that there was a con- the limit of its corporate existence. But is is unnecstavt and continued affirmance” that the holding was essary to express a definitive opinion upon that point, under the agreement, and now when the complainant because it is agreed in the case stated that the defendcannot be made whole in any other way, it is his right ant gave, in compromise of the original twenty notes to ask that the agreement should be performed by the for $171.05 each, the new note for $1,881.60. If the party whose delay and death has compelled him to plaintiff had exceeded its corporate powers in making seek the intervention of a court of equity.

the original contract, yet it had autbority to comproNor do we think the statute of limitations should mise and settle all claims by or against it under that apply in this case for the reasons before stated. The contract. Morville v. American Tract Soc., 123 Mass. language of Mr. Justice Barrows, in Lawrence y. 129. The compromise of the disputed claim on the Rokes, 61 Me. 43, may not be inappropriate in this con- original notes was a legal and sufficient consideration nection, that “where it appears beyond question or for the new note. Cook v. Wright, 1 Best & S. 559; dispute that lapse of time has not in fact changed the Tuttle v. Tuttle, 12 Meto. 551; Riggs v. Hawley, 116 condition and position of the parties in any important Mass. 596. By the terms of the agreement of comproparticular, and there are any peculiar circumstances mise the plaintiff's cause of action on the origival notes entitled to consideration as excusing the delay, they was not to revive, in case of the new note not being (the court) will not refuse the appropriate relief, al- paid at maturity, except upon the surrender of this though a strict and unqualified application of limita- note to the defendant. The plaintiff not having surtion rules might seem to require it.

* * * He does rendered it, but holding and suing upon it as well as not plead the statute of limitations, and although un- upon the original notes, has not performed the condi der rule 6 he may have the benefit of a plea in bar by tion on which the revival of the right of action on the inserting its substance in his answer, in the absence of original notes depended. It follows that the plaintiff any intimation in the answer that he claims exemption cannot recover in this action on the original notes for on the score of lapse of time, the court will not inter- $171.05 each, but is entitled to recover on the new note fere to set up the bar, but will consider tbe respondent for $1,881.60. Northern Liberty Market Co. v. Kelly. as waiving it, even though the facts alleged were such Opinion by Gray, J. as to make it appear that it might be successfully in- [Decided Jan. 19, 1885.] terposed."

UNITED STATES GOVERNMENT PROPERTY-UNAUNeither will courts of equity allow such a bar to prevail "tu suits in equity, where it would be in the fur.

THORIZED SALE.-A party to whom has been delivered therance of a manifest injustice."' Story Eq. Jur., $

without sanction of law material of old ships, property 1521.

of the United States, to which he had no title wbatUnder all the circumstances and upon the case as set

ever, by contract or otherwise, is accountable to the forth in the bill, we are of the opinion tbat the com

government for its full value, notwithstanding that plainant is entitled to the specific performance for

his account has been settled by the officers of the navy which he prays, and in accordance with the stipulation

department at a sum less than its full value. Both the of the parties, the entry should be: Demurrer over

disposition of the property and the settlement of the ruled. Bill sustained, with no costs for complainant.

account were without authority of law, and not bindDecree for specific performance as prayed for in said

ing on the government. Nor can laches in not objectbill.

ing to the settlement of the appellant's account at an Peters, C. J., Danforth, Virgin, Emery and Haskell,

earlier time be imputed to the United States, and set JJ., concurred.

up as a bar to the recovery of the value of the property (See 37 Am. Rep. 847; 3 id. 657 ; 22 Eug. Rep. 764.

unlawfully appropriated. This is a case for the appliEd.]

cation of the rule nullum tempus occurrit regi. Lindsey
v. Miller, 6 Pet. 669; Gibson v. Christian, 13 Wall. 92.

Steele v. United States. Opinion by Woods, J.
UNITED STATES SUPREME COURT AB- [Decided Jan. 19, 1885. ]


RAILROAD CORPORATION.-Certain unsecured NEGOTIABLE INSTRUMENT - COMPROMISE — NEW creditors of a railroad company in Alabama instituted NOTE-CONSIDERATION-SURRENDER.--Amarket-house proceedings in equity in a court of that State, on becompany, incorporated for twenty years, with power half of themselves and of all other creditors of the to purchase, hold and convey any real or personal es- same class who should come in aud contribute to the tate necessary to enable it to carry on its business, built expenses of the suit, to establish a lien upon the propa market-house on land owned by it in fee-simple, and erty of that company in the hauds of other railroad sold by public auction leases for ninety nine years, re- corporations which had purchased and bad possession newable forever, of stalls therein at a specified rent, of it. The suit was successful, and the court allowed The highest bidder for one of the stalls gave the corpo. all unsecured creditors to prove their claims before a ration several promissory notes in part payment for register. Pending the reference before the register the option of that stall, received such a lease, and took the defendant corporations bought up the claims of and kept possession of the stall, and afterward gave it cumplainants and other unsecured creditors. Therea note for a less sum in compromise of the original upon the solicitors of complainants filed their petition notes, and upon express agreement that if this note in the cause to be allowed reasonable compeusation in should not be paid at maturity the corporation might respect of the demands of unsecured creditors (other surrender it to the maker, and thereupon the cause of than their immediate clients) who filed their claims action on those notes should revive. Held, that the under the decree, and to have a lien declared therefor new note was upon a sufficient legal consideration, and on the property reclaimed for the benefit of such credthat the corporation, holding and suing upon all the itors. The suit between the solicitors and such denotes, could recover upon this note only. The plaintiff fendant corporations was removed to the Circuit Court insists that the original notes were valid, because a of the United States. Held, (1) Within the principle corporation, empowered to hold and convey the real announced in Trustees v. Greenough, 105 U. S. 5:27, the estate for the objects of its incorporation, may convey

claim was a proper one to be allowed; (2) it was also an estate in fee or any less estate in lands which it has proper to give the solicitors a lien upon the property


[merged small][ocr errors][ocr errors]



ned in

[ocr errors]

brought under the control of the court by the suit and manufacturers, whether natural persons or corporathe decree therein, such lien being authorized by the tions, in their private business. These limits of the law of Alabama. See also Montgomery, etc., R. Co. legislative power are now too firmly established by v. Branch, 59 Ala. 139; Matter of Lehman, id. 632; judicial decisions to require extended argument upon Warfield v. Campbell, 38 id. 527. Central Railroad & the subject. In Loan Association v. Topeka, 20 Wall. Banking Co. of Georgia v. Pettus. Opinion by Har- 655, bonds of a city, issued, as appeared on their face, lan, J.

pursuant to an act of the Legislature of Kansas, to a [Decided Jan. 1885.)

manufacturing corporation, to aid it in establishing

shops in the city for the manufacture of iron bridges, MANDAMUS — ADEQUATE REMEDY JUDGMENT OF were held by this court to be void, even in the hands CIRCUIT COURT.-A writ of mandamu8 is not ordi- of a purchaser in good faith and for value. A like denarily granted when the party aggrieved has another cision was made in Parkersburg v. Brown, 106 U. S. adequate remedy. No formal allowance by the Cir- 487. The decisions in the courts of the States are to cuit Court of a writ of error from this court to review

the same effect. Allen v. Jay, 60 Me. 124; Lowell v. a judgment of that court is required. Davidson v. Boston, 111 Mass. 454; Weismer v. Douglass, 64 N. Y. Lannier, 4 Wall. 453. The writ issues in a proper case 91; In re Eureka Co., 96 id. 42; Bissell v. Kankakee, as a matter of right, but when sued out security must 64 Ill. 249; English v. People, 96 id. 566; Central be given, and a citation to the adverse party signed. Branch Union Pac. R. Co. v. Smith, 23 Kan. 745. We This security may be taken, and the citation signed have been referred to nofopposing decision. The cases by a judge of the Circuit Court, or any justice of Hackett v. Ottawa, 99 U. S. 86, and Ottawa v. Naof this court. No action of the Circuit Court tional Bank, 105 id. 342, were decided as the chief jus

court is required. It does not appear tice pointed out in Ottowa v. Carey, 108 U. S. 110, 118, from the petition that any application has been made

upon the ground that the bonds in suit appeared on to either of the judges of the Circuit Court to approve their face to have been issued for municipal purposes, security or to sign a citation. If they should refuse an and were therefore valid in the hands of bona fide application hereafter, resort may be had to either of holders. In Livingston v. Darlington, 101 U. S. 407, the justices of this court. It will be time enough to the town subscription was toward the establishment apply for a mandamus when all these remedies have of a State reform school, which was undonbtedly a failed. Motion denied. Matter of Com’rs, etc., of public purpose, and the question in controversy was Virginia. Opinion by Waite, C. J.

whether it was a corporate purpose within the mean[Decided Nov. 10, 1884.]

ing of the Constitution of Illinois. In Burlington v.

Beasley, 94 U. S. 310, the grist-mill, held to be a work ADMINISTRATION OF ESTATE-CONCEALMENT, FRAUD,

ot internal improvement, to aid in constructing which ETC.SURVIVING PARTNER-TRUSTEE- PURCHASER

a town might issue bonds under the statutes of KanNOTICE.-(1) A settlement of an administrator's ac

sas, was a public mill which ground for toll för all cus. count by the decree of la Probate Court does not con

tomers. See Osborne v. Adams Co., 106 U.S. 181, and clude as to property accidentally or fraudulently with

109 id. 1; Blair v. Cuming Co., 111 id. 363. Subscripheld from the account. If property be omitted by

tions and bonds of towns and cities under legislative mistake, or be subsequently discovered, a court of

authority, to aid in establishing railroads, have been equity may take the proper action to do justice to the

sustained on the same ground on which the delegation heirs or creditors of the estate as to such property,

to railroad corporations of the sovereign right of emieven though the Probate Court might in such case re

nent domain bas been justified--the accommodation open its decree and administer upon the omitted prop

of public travel. Rogers v. Burlington, 3 Wall. 654; erty. (2) A fraudulent concealment or a fraudulent

Queensbury v. Culver, 19 id. 83; Loan Association v. disposition of property is always a ground for the in

Topeka, 20 id. 601, 662; Taylor v. Ypsilanti, 105 U. S. terposition of equity. (3) The administrator of a de

60. Statutes authorizing towns and cities to pay ceased member of a partnership, who taking advan

bounties to soldiers have been upheld, because the raistage of the consent of an ignorant and weak-minded

ing of soldiers is a public duty. Middleton v. Township surviving partner, assumes control of the entire part

of Mullica, 112 U. S. 433; Taylor v. Thompson, 42 111. 9; nership property, is bound to the utmost good faith in

Hilbish v. Catherman, 64 Penn. St. 154; State v. his dealings with the property, and should be held in

Richland Tp., 20 Ohio St. 362; Agawam v. Hampden, its disposition to the responsibilities of a trustee of

130 Mass. 528, 534. The express provisions of the Consuch surviving partner. (1) A surviving partner, stitution of Missouri tend to the same conclusion. It whose property is sold by the fraudulent act of a de

begins with a declaration of rights, the sixteenth articeased partner's administrator, may, instead of seek

cle of which declares that “no private property ought ing to annul the sale, compel the administrator to account to him for the amount received for the property.

to be taken or applied to public use without just com

pensation." This clearly presupposes that private (5) A purchaser, who colluded with an administrator in the fraud by which a sale of partnership property

property cannot be taken for private use. St. Louis

Co. Ct. v. Griswold, 58 Mo. 175, 193; 2 Kent Comm. 339 was consummated, takes the property with notice of

note, 340. Otherwise as it makes no provision for comthe rights of the intestate's partner, and of the relation of trustee which the administrator bore to such

pensation except when the use is public, it would per

mit private property to be taken or appropriated for partner. Griffith v. Godey. Opinion by Field, J.

private use without any compensation whatever. It is [Decided Jan. 25, 1885.)

true that this article regards the right of eminent doCONSTITUTIONAL LAW--EMINENT DOMAIN-PUBLIC main, and not the power to tax; for the taking of USE-MUNICIPAL BONDS TO AID PRIVATE CORPORA

property by taxation requires no other compensation TION.-The general grant of legislative power in the than the tax payer receives in being protected by the Constitution of a State does not enable the Legislature government to the support of which he contributes. in the exercise either of the right of eminent domain But so far as respects the use, the taking of private or of the right of taxation to take private property property by taxation is subject to the same limit as the without the owner's consent for any but a public ob. taking by the right of eminent domain. Each is a ject. Nor can the Legislature authorize counties, taking by the State for the public use, and not to procities or towns to contract, for private objects, debts mote private ends. Cole v. City of La Grange. Opinion wbich must be paid by taxes. It cannot therefore au- by Gray, J. thorize them to issue bonds to assist merchants or [Decided Jan. 5, 1885.)

[ocr errors][merged small][ocr errors]
[ocr errors]


UNITED STATES CIRCUIT COURT AB- The defendant was thus to advertise his implements

and sell them at a profit, and agreed to pay the brok

ers five dollars per newspaper for insertions so made. REMOVAL OF CAUSE-COLLUSIVE TRANSFER-REMAND. Instead of carrying out this arrangement the brokers ING CASE-ACT OF MARCH 3, 1875, § 5-EVIDENCE- | bad the advertisements inserted in newspapers in CREDIBILITY OF WITNESS-DISCRETION OF COURT.-(1) which they owned at the time, by contract with the A plaintiff who has been introduced into a controversy publishers, the required space, or in which they had by an assignment or transfer merely that he may ac- procured the insertion of the advertisements solely by quire a standing and relation to the controversy, to en- a consideration moving from themselves, and the obable him to prosecute it for the beneficial interests of taining the implements was no inducement to the the original party, is collusively made a party to the newspaper proprietors. The agents intentionally presuit, and when the fact appears it is the duty of the vented the defendant from receiving all the benefits court to remand the suit, under section 5 of the act of which they undertook to obtain, and made only a Congress of March 3, 1875. Where an extraordinary nominal performance of their contract. On the retransaction is disclosed, no satisfactory explanation of fusal of defendant to pay the agreed commissions they which is vouchsafed, and the evidence of the trans- brought suit thereof. Held, that they had not acted action, which it was in the power of the parties to pro- in good faith, and were not entitled to recover. The duce, has been withheld, the court may disregard the elementary principles which govern the decision of the testimony of the parties so far as it is improbable, and case are stated in all the text-books, aud in one of interpret the transaction in a way consistent with the them very clearly, as follows: “One of the rules, ordivary conduct and motives of business men. It is which will be found more particularly applicable to stated in Newton v. Pope, 1 Cow. 109, that it is diffi-| the relation of principal and agent is the one that cult to establish a rule which shall regulate and limit good faith should always be observed,' and also the the discretion of a court or jury in the degree of credit one that an agent canuot act, so as to bind his printo be given to the testimony of a witness, but where cipal, when he has an adverse interest to him in himhe is unimpeached, the facts sworn to by him uncon- self. This rule, says Mr. Justice Story, 'is founded on tradicted, and there is no intrinsic improbability in the obvious consideration that the principal bargains the relation given by him, his testimony cannot be in the employment for the exercise of the disinterdisregarded. A witness may be contradicted by cir- ested skill, diligence, and zeal of the agent for his excumstances as effectually as by the statements of other clusive benefit.'" Petgr. Princ. & Ag. 25. Cir. Ct., D. witnesses. Conjecture is not to be substituted for Conn. Allen v. Pierpont Opinion by Shipman, J. probative indicia ; but where these exist, a judge or a

JURISDICTION- CIRCUIT COURT juror is not bound to surrender bis convictions and

RAILROAD CORPORATION-CITIZENSHIP:-(1) A railroad blindly accept the statement of a witness, because no other witness has contradicted it, and the character corporation composed of two corporations created in

the State of Michigan anà one created in the State of of the witness is not impeached. The authorities are numerous that a judge or jury, in the exercise of ju- Indiana, consolidated and merged into a single cordicial discretion, is at liberty to reject the statements poration under the laws of both States, owning and of witnesses in the situation of the witnesses here, and operating a single continuous line of road from a cer

tain point in one State to a point in the other, is a under the circumstances of this case. Hardiug v.

citizen of the State of Indiana as well as of Michigai), Brooks, 5 Pick. 245; Elwood v. W. U. Tel. Co., 45 N.

and cannot be sued by a citizen of Indiana in the CirY. 549: Kavanagh v. Wilson, 70 id. 177; Gildersleeve v.

cuit Court of the United States for the District of InLandon, 73 id. 609; Koehler v. Adler, 78 N. Y. 287. Cir.

diana. (2) The precise question presented has never Ct., N. D. New York. Chandler v. Town of Attica.

been authoritatively decided, though it has sometimes Opinion by Wallace, J. [(2) See 92 N. Y. 497 ; 85 id.

been stated in opinions delivered in analogous cases, 377; 2 Abb. N. C. 239, 257 ; 86 N. Y. 548, 553–4; 22 Fed. Rep. 634.)

and in one instance, at least, an opinion upon it has

been expressed. See Uphoff v. Chicago, eto., R. Co., 5 CORPORATION-ELECTION OF DIRECTORS—MISMAN- Fed. Rep. 545; Nashua & L. R. Corp. v. Boston & L. AGEMENT-RIGHTS OF STOCKHOLDERS.-Where a cor- R. Corp., 8 id. 458; S. C., 19 id. 804. In the latter case poration, by contract not impeached, acquires a ma- the plaintiff, being a consolidated company composed jority of the capital stock of another corporation, and of New Hampshire and Massachusetts corporations, through the control thus acquired elects new direct- brought an action in the Federal court in and against ors, and the latter corporation fails to fulfill its part of another corporation of the latter State, and in discusthe contract, the stockholders of the former company, sing the question of jurisdiction, when the case was on the sole ground that the acts of such directors are first under consideration, Nelson, J., said: “In this highly detrimental to the property and interests of the case it seems that the defendant corporation might go company, will not be entitled to an injunction against into New Hampshire, and there sue the plaintiff as a their further acting as directors and officers, and the New Hampshire corporation in the Foderal court, appointment of a receiver of the property. See Dimp. although it could not bring such suit in the District of fell v. Ohio, etc., R. Co., 110 U. S. 209; Hawes v. Vak- Massachusetts against the New Hampshire corporaland, 104 id. 450. Cir. Ct., S. D. New York, Dec. 13, tion, because no service upon the New Hampshire cor1884. Converse v. Dimock. Opinion by Wheeler, J. poration as such could be got in this district, if for no

other reason. It has been determined by Judge LowAGENCY-CONTRACT TO PROCURE ADVERTISEMENT

ell that in some cases non-resident corporations may AGENT PERSONALLY INTERESTED COMMISSIONS.-A

be served with process from United States courts in firm of brokers, as agents for defendaut, uudertook to

other districts than those in which they were charhave his advertisements inserted in country newspa- tered, and where they are found to be doing business pers, the proprietors of which were willing to furnish or domiciled. But this rule would not, we suppose, the required space for the required time upon the faith extend to a case like the present.” In the other case of defendant's written promise to sell to them from

it was decided that such a company, when sued in one one to three feed-cutters, manufactured by him, at a

of the States in which it had been organized, by a citireduced price, the reduction in the price being the zen of that State, cannot by showing its organization compensation which the publishers were to receive.

in another State, procure a removal of the cause from * Appearing in 22 Federal Reporter.

the State to the Federal court; and discussing the

ale the

question, Hammond, J., said: “It may be a test of one company is the property of the other. According
the soundness of the judgment here rendered to con- to the decision in Horne y. Boston & M. R. R., 18 Fed.
sider whether, under its operation, it would be com- Rep. 50, the fact that the injury complained of was
petent for this consolidated corporation to ignore its suffered in Michigan is not material to the question of
Kentucky existence, and describing itself as a corpor- jurisdiction. Cir. Ct., D. Indiana, 1884. Burger v.
ation under the laws of Louisiana, sue a citizen of Grand Rapids, etc., R. Co. Opinion by Woods, J. (22
Kentucky in this court (sitting in Kentucky), or Fed. Rep. 561.)
whether a citizen of Kentucky, ignoring the Kentucky
statutes, might sue it in this court as a Louisiana cor-
poration 'found' within this district; and if either be

PENNSYLVANIA SUPREME COURT admissible, why the same right to choose the capacity

ABSTRACT. in which it shall conduct the litigation does not exist in favor of the right of removal when sued in the DAMAGES-LIQUIDATED OR PENALTY-PROFITS.-A. State courts." In other cases besides the Nashua & agreed to place in B.'s mill, within a stipulated time, L. Corp. v. Boston & L. Corp., already cited, it has certain machines to make flour, which should have a been held that a corporation organized and consolida- capacity not below 200 barrels of high grades of flour ted under the laws of two States, describing itself as a

daily, and further agreed that it should be no expericorporation of any one of them, and ignoring the stat- | meut, and in proof thereof that in case the results utes of the other, may sue a citizen of the latter in the were not as promised the machines should be retained Federal court there sitting. St. Louis, A. & T. H. R. without any price being paid. The machines when Co. v. Indianapolis & St. L. R. Co., 9 Biss. 144; Chicago furnished were found not to make a high grade of & N. W. R. Co. v. Chicago & P. R. Co., 6 id. 219. See flour, and not to be capable of producing the stipulaalso Railway Co. v. Whitton, 13 Wall. 271, 283, fol- ted number of barrels per day. In an actiou by B. lowed and re-affirmed in Muller v. Dows, 93 U. S. 444, against A. to recover damages. Streeper v. Williams, 448. While at common law a corporation may not

12 Wr. 454; Shreve v. Brereton, 1 P. F. S. 185. In migrate, but must dwell in the place of its creation,

Mathews v. Sharp, 3 Out. 564, Mr. Justice Truukey and cannot be sued elsewhere, yet under the laws of said, referring to Streeper v. Williams, supra: "In an Congress and of the States it may exercise its author- elaborate opinion it was ruled that to determine ity in a foreign territory upon such conditions as may

whether the sum named as a forfeiture for non-combe prescribed by the law of the place. “One of these pliance is intended as a penalty or as liquidated damconditions may be that it shall consent to be sued ages, it is necessary to look at the whole contract, its there. If it do business there it will be presumed to subject-matter, the ease or difficulty in measuring the have assented, and will be bound accordingly. For breach in damages and the magnitude of the stipu. the purposes of Federal jurisdiction it is regarded as lated sum, not only as compared with the value of the it it were a citizen of the State where it was created, subject of the contract, but in proportion to the proband no averment or proof as to the citizenship of its able cousequences of the breach." There are numermembers elsewhere will be permitted." Railroad Co ous authorities on this subject, but probably their best v. Harris, 12 Wall. 65. In the case last cited it is also expression is found in the foregoing citations. Held, said: “We see no reason why several States cannot, that the clause in the agreement that the machines by competent legislation, unite in creating the same might be retained was not a liquidation of damages, corporation, or in combining several pre-existing cor- but in the nature of a penalty. Held further, that the porations into a single one. The jurisdictional effect measure of damages was the amount paid upon the of the existence of such a corporation, as regards the machines, the loss by defects in the machinery, and Federal courts, is the same as that of a co-partnership the cost incurred in repairing the mill and putting it of individual citizens residing in different States."

into condition to produce 200 barrels daily of a high See also St. Clair v. Cox, 106 U. S. 350; Ex parte Shol. grade of flour, less the value of that portion of the delenberger, 96 id. 369; Railroad Co. v. Koontz, 104 id. 5; fendant's machines retained and used in the repairing Life Ing. (o. v. Woodworth, 111 id. 138; Railroad Co. and refitting of the mill. The loss of possible profits, v. Railroad Co., 10 Fed. Rep. 497; Callahan v. Railroad which might bave been made if the mill had ruu propCo., 11 id. 536. In Railroad Co. v. Wheeler, 1 Black, erly, was uot a proper subject of damages, the plaint297, the Supreme Court at an earlier date, speaking of i ff being measurably in fault, and further because such a consolidated company, had said : “The president

damages were too remote and speculative. Hoy v. and directors of the Ohio & Mississippi Railroad Com- Gronoble, 10 Cas. 11; Adams Express Co. v. Egbert, pany is therefore a distinct and separate corporate

12 id. 364. Pennypacker v. Jones. Opinion by Green, body in Indiana from the corporate body of the same

J. name in Ohio, and they canuot be joined in a suit as [Decided Oct. 6, 1884.) one and the same plaintiff, nor maintain a suit in that

RECORDING ACT-LEAVING WITH RECORDER-INDEX character against a citizen of Ohio or Indiana in a Cir

NO PART OF RECORD.-Prior to the act of March 18, cuit Court of the United States.” The statutes of In.

1875, at least it was well settled that a deed was in condiana provide for suits against foreign corporations

templation of law recorded, when it was left in the doing business in the State, and for service of process recorder's office, and put upon the entry book for that upon agents found in charge of such business. Rev.

purpose. The duty of the recorder was to record it, Stat. 1881, $$ 3022, 3030. But in respect to consolidated

and the responsibility rested upon bim for any default bodies, having a chartered existence both in this and

in the proper discharge of that duty; the consequeno in a foreign Stato or States, it seems quite doubtful

ces of his default could not be visited upon the owner, whether these statutes, which in terms embrace only

who had done all that the law required in depositing “corporations not incorporated or organized in this

the deed in the office for that purpose. A different State,” can be considered applicable. The conclusion

doctrine was perhaps declared in Luch's Appeal, 8 which I have reached is in some measure fortified per

Wright, 519, where it was held that mortgages must be haps by the consideration that if judgment could be

recorded in a “mortgage book," and that they are not given in this action against the defendant

a properly recorded in any other book, where they canMichigan corporation, it would be binding upon

not be found by means of a “mortgage index," but the company in this State as well as in Michigan, and

that case was expressly overruled in Glading v. Frick, might be enforced by execution issued directly against Nor. 460, where it was said by Paxson, J.: "Wo the property of the company here. The property of feel ourselves constrained to return to the rule laid


[ocr errors]



[ocr errors]

down by Chief Justice Gibson in McLanahan v. Ree- held liable only as a bailee for hire, and it was decided
side, 9 Watts, 511." “It is indeed,” says the Chief that the bailor could not recover upon simple proof of
Justice, "of no account that the conveyance and the the destruction of the goods by fire, he must go farther
articles were not recorded in the book set aside for and show that the loss was caused by the negligence of
mortgages; the keeping of such a book is an arrange- the bailee. Lamb v. Camden & Amboy R. & Tr. Co.,
ment to promote the convenience of the officer, by 46 N. Y. 271; Farmham v. Camden & Amboy R. Co.,
contracting the surface over which he is to search for 55 Penn. St. 53. In the latter case it was said, “that
a particular thing; he is bound to furnish precise in- where a bailee accounts for a loss in a way not to im-
formation, get it as he may, of every registry in his plicate himself in a charge of negligence, this is a suffi-
office, whether made in the right place or not.” Clader cient defense, unless the plaintiff proves negligence.”
7. Thomas, 8 Nor. 343, and Paige y. Wheeler, 11 id. 282, Nat. Line Steamship Co. v. Smart. Opinion by Trun-
are to the same effect. The remark of Chief Justice key, J.
Woodward, in Speer v. Evans, 11 Wright, 141, that the in- [Decided Nov. 20, 1884.]
dex is an indisputable part of the record, is not to be re-
garded as an adjudication to that extent; that case
turned upon the question of actual notice. Schell v.

Stein, 25 P. F. S. 398. No duty rested upon a party to
supervise the action of the recouder, to see that he

made the record and indexed the conveyance. Brown
and Wood's Appeal, 3 Week. Notes, 35; Wyoming Editor of the Albany Law Journal:
Bauk's Appeal, 11 id. 567. Stockwell v. McHenry. Opin- whether, in this degenerate age, the members of the

I rise to a question of privilege! I desire to know ion by Clark, J. [Decided Oct. 20, 1884.]

legal profession havo any rights which courts of jus

tice are bound to respect. CARRIER-BAGGAGE

It appears to be a modern invention to dispose of leBURDEN OF PROOF.-(1) A passenger must be allowed gal controversy by ignoring the merits of the case a reasonable time after arrival of his baggage to call itself, and deliveriug an elaborate opinion upon the for and take it away, and during such time the carrier merits or demerits of the counsel by whom it is concontinues responsible according to the strict rule of ducted. It is undoubtedly much easier, in a majority Jaw relating to common carriers. When the liability of cases, to dispose of the latter than the former, and as carrier ceases he holds the baggage under a modi- therefore not especially remarkable that the practice fied liability. His duty to exercise care over the prop- is rapidly increasing. The average lawyer however is erty remaining in his hands grows out of the original not so avaricious or ambitious for personal Jistinction contract, and he is therefore bound to exercise ordi- as to feel specially flattered by repeated judicial annary care in keeping and preserving it, the original nouncements that he is, professionally speaking, an contract, though modified in respect to the degree of ass, at the uniform expense of his clients, or to crave liability assumed from a reasonable time after the ar- their continuance in cases where they are no less at rival of the goods, being understood to contemplate a his persoual expense, by reason of the fact that they possible delay, and to cover the delivery. Edwards on are alike unwaranted and unjust. Bail. 90; Hutchinson on Car. 708, 712; Burnell v. New I am not an advocate of the practice of reviewing York Cent. R. Co., 45 N. Y. 184. Where the contract adverse decisions by “swearing at the court," and do is to carry goods by sea from port to port, it is the do not design in the present instance to take any new duty of the nsignee to receive the goods out of the departure iu that behalf, but after mature deliberaship or at the wharf. If they are not accepted by the tion I have reached the conclusion that the time bas consignee the carrier should put them in a place of arrived, when from a personal stand point, I should safety, and when he has so done he is no longer liable “have leave to kick for being kicked,” and be peron his contract of affreightment. Richardson v. God- mitted to enter a firm and vigorous protest against dard, 23 How. 28. 80 a passenger should call as soon the more recent application of this modern invention as practicable for his baggage, but if he does not, the in the disposition by the “court of last resort carrier is bound to care for it or send it to a fit store- cause professionally conducted by myself as counsel house. (2) A common carrier is regarded as an insurer for the unsuccessful litigant. of the safety of the goods agaiust all losses except such I refer to the case of Arnold v. Parinalee, 97 N. Y. as may be caused by the act of God or the public 652, which in the matter of inaccuracy of statement, enemy; and exceptions may arise from the fault of the novelty of doctrine, and manifest injustice to counsel owner, or from some inherent defect in the goods, or and client, may be regarded as entirely sui generis, upon an express contract that the carrier shall uot be even in this era of multitudinous and diversified adjudliable for loss from a specified cause. In all such cases ication. It also graphically illustrates with what the burden is upon the carrier to establish the fact wonderful facility in modern practice a case of considwhich will bring his case within an exception to the erable intrinsic importance, pecuniarily and otherrule. When the carrier has shown that the loss was wise, may be disposed of by a siugle stroke of the juoccasioned by a cause from the liability of which he dicial guillotinc, simultaneously beheading both counis protected by law or by contract, it will not be pre- sel and client. sumed that his negligence contributed to the loss, but I rest my defense solely upon the record presented the presumption will be, in the absence of proof to es- to the court, and a correct statement of the case as distablish his negligence, that the carrier has done his closed thereby. duty; and if it has been shown that the loss resulted Upon the pleadings the plaintiff's cause of action from such cause, without also having shown that the stood admitted. Various affirmative matters of alcarrier was negligent, the burden of proving his negli- leged defense were interposed. Certain "questions of gence devolves upon the plaintiff. This rule seems to fact," pertaining or supposed to pertain to those debe supported by a decided preponderance of author- fenses were settled to be submitted to a jury, and ity. Hutchinson on Car. 765-767. It has been estab- were thus tried at Circuit. The result of the answers lished in New York and Pennsylvania, and considered of the jury was such as to defeat the plaintiff's right as if applicable to the case of a bailee who receives to recover. Subsequently the cause came on for heargoods to store for a compensation. Where a carrier, | ing at the Special Term. It is true that this court was by contract, was exonerated from a loss by fire, he was held by a justice of the Supreme Court other than the

" of a

« ПретходнаНастави »