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NOTES AND DRAFTS GIVEN AS COLLATERAL SECURITY FOR A LOAN.

The legal reporter of the Evening Post says, in regard to the following case, which was tried in the Supreme Court, New York City--" The question is one which has as yet received no direct adjudication in this country or in England, and should the ruling of the court be sustained by the General Term, to which the case is soon to be carried, it will establish a point of the utmost importance to business men, as we understand it is the almost universal custom in this community to dispose of securities of the kind held in this case, in the same manner in which they were disposed of by the defendant in this action."

William A. Wheeler et al. agt. John A. Newbould. This action was brought for the recovery of $2,614 73, being the amount of several notes and drafts given as collateral security for a loan of $2,000 obtained by the plaintiff's through their broker, Jeremiah Hotchkiss, from the defendant, on the ground that the loan was usurious, and in case the loan should not be held to have been usurious, to recover $614 73, being the excess of the collaterals over the amount loaned. At the trial, the plaintiff's abandoned the ground of usury, and claimed only the excess of the amount of the collaterals over the loan, ($2,000, with interest.)

It appeared that on the 6th of November, 1848, the defendant lent to the plaintiffs, through Hotchkiss, $2,000, and took the plaintiffs' check for that sum, dated Dec. 24th, 1848, and certain collaterals, as above stated.

The check not having been paid at maturity was protested, and the defendant, after demanding payment of the loan, and giving notice to the plaintiffs of his intention to do so, sold the collaterals at private sale, for $2,020 the defendant insisting that that was the best price that he could obtain for them.

In a former report of this case it was erroneously stated that the plaintiff averred that an interview was purposely avoided by defendant. The allegation was that the interview was avoided by the broker.

The plaintiffs contended that this case should be governed by the well estab lished principle, that upon a loan of money upon the pledge of goods and chattels, if the loan be not paid, the property taken as collateral security could only be sold at public auction, after giving the borrower notice of the time and place of sale.

The defendant contended that, by the universal custom and usage in this city, he had a right to sell the collaterals at private sale, after notice, and that a sale at auction of such securities would be destructive to the interests of all parties.

The court, however, (Judge Oakley,) held, for the purposes of the trial, that a loan upon the pledge of commercial paper did not give the lender the right to sell the paper at all. That if the loan was not paid at the time agreed upon, the lender might hold the paper until maturity, and collect and apply the money to payment of the loan, and upon that ground directed the jury to find a verdict for the plaintiffs for the excess of the collaterals over the amount of the loan and interest.

But the judge stated that, as the point was new, and of great practical importance in this city, he should direct the judgment to be suspended until a case is made to be heard at the General Term, in the first instance, before a full bench.

IMPRISONMENT FOR DEBT.

In the United States District Court, (Louisiana.) Curtis et al. vs. Victor Feste.

This case came up on Wednesday, May 18th, 1853, and motion was made to discharge defendant from arrest, who was taken by process issued from this Court, in accordance with the 10th and 13th sections of an act of the Louisiana Legislature, passed in March, 1840.

In 1837, Congress abolished imprisonment for debt under process from the Courts of the United States, in those States where it had been abolished by law,

and provided that "when by the laws of a State, imprisonment for debt shall be allowed under certain conditions and restrictions, the same conditions and restrictions shall be applicable to the process issuing out of the courts of the United States; and the same proceedings shall be had therein as are adopted in the Courts of such State. 5 S. at large, 321.

In 1841, an act supplementary was passed by which it was enacted that the act of 1837 should be construed so as to abolish imprisonment for debt in all cases whatever, on process issuing from the Courts of the United States, when by the law of the State in which the said Court shall be held, imprisonment for debt has been or shall hereafter be abolished.

The laws of Louisiana provide fully for the abolition of imprisonment for debt, and the process by which the arrest of a debtor is made has been also abolished. The consequence is that, under the act of Congress, imprisonment for debt in all the cases under process from this Court was formally terminated. The Legislature of Louisiana has given to creditors a remedy highly primitive in its character, as respects their debtors in certain cases of fraud. The statute cannot be enforced in favor of creditors in the Courts of the United States. The Supreme Court of the United States, in the case of Green ts. Breedlove, (2 Howard 29,) which involved the application of a penal statute of Mississippi, to a marshal, for a false return of an execution, says: "This being an offense against the State law, the Courts of the State alone could furnish its commission, the Courts of the United States having no power to execute the penal laws of the individual States."

The statute under consideration is in a very high degree penal. It is made the duty of the Court, in all cases described in it except one, upon conviction of the debtor, to sentence him to three years' imprisonment, and in the other case to sentence him to the same term of imprisonment, with a condition that he should be discharged on payment of the debt. This court has no jurisdiction over a case like this, and the defendant must be discharged from arrest.

BREACH OF CONTRACT.

In the Superior Court, (New York, April, 1853,) before Judge Duer. Charles L. Frost & Co. vs. Josiah Conley & Co.

This was an action to recover damages for a breach of contract in selling beef. In June, 1852, the plaintiffs, through their agent, purchased from defendants 60 barrels of mess beef, then stored in Thompson & Co.'s yard, for which they paid $660, being at the rate of $11 per barrel, and obtained an order from defendants to have it delivered to them. Thompson & Co., however, refused to deliver it, because the order called the article "mess beef," whereas it was in reality what is called "railroad" or "plaited mess beef." The plaintiffs now sue not only for a return of their money, but also for the loss they sustained from the defendants not having fulfilled their contract, as mess beef had, immediately after their purchase of this article, risen in price. It appeared that the defendants had purchased 111 barrels of this beef from Gibson & Co. as prime "railroad" or "plaited mess" beef, and paid $9 per barrel for it, and that they had 6 barrels of it brought to their store and examined, and those barrels, or at least some of them, were found to contain as good an article as is called country mess beef, and the plaintiff's agent examined two barrels out of the six, and was so satisfied with the quality of the article as shown by this sample, that he purchased the 60 barrels for the plaintiffs. Beside the return of the $660 paid by the plaintiffs, their claim for damages for loss sustained by their not receiving the mess beef, made their entire claim against the defendants about $1,000.

The Court charged the Jury. The defendants purchased from Gibson & Co. 105 barrels of railroad beef, for which they paid the highest price that railroad beef was then selling at. They purchased it as being of good quality, but they knew it was railroad beef, and not put up in the country as mess beef,-but that it was put up as such by the owner of it in the yard of Thompson & Co., and was likely to contain only such pieces as would constitute railroad beef. Six barrels of the lot were brought to the plaintiffs' store and examined, but it did

not affirmatively appear whether these six barrels were altered after they arrived at defendants' office. Mills, the plaintiffs' agent, examined two of these barrels, and they contained such piece of beef, which, if the lot contained the same, would constitute country mess beef and not railroad beef, and though it was put up here as railroad beef, yet, if it all corresponded in quality with mess beef, the defendants would be justified in selling it as such. But it is hard to understand how it is that the pieces which were examined are never found in railroad beef and only in mess beef. It may be, however that those two barrels contained pieces of that quality, and that the defendants therefore inferred that all tho rest was the same. But they were bound to know, and must know, as they bought it for railroad beef, that it was railroad beef, and had no right to sell it as mess beef, unless they knew it to be of that quality; and they should not have concealed the fact that it was bought by them as railroad beef, and that they had no knowledge that the character of the beef did not correspond with the general quality of the article which they had purchased. If the Jury believed that it was country mess beef, then the plaintiffs are only entitled to what they paid with interest. This they are entitled to, because the 60 barrels were not received by them, and Thompson & Co. were justified in refusing to deliver an article which they knew the defendants had not in their yard. But if the Jury concluded that the contract was for mess beef, the plaintiffs were entitled to recover the value of mess beef, which the witness stated to be from $15 to $17. The Jury gave a verdict for plaintiffs, $1,026 94, being the full amount claimed with interest. Judgment suspended, until a hearing at General Term.

LECTURES ON COMMERCIAL LAW.

"The Council of King's College having observed the wide interest taken by the mercantile classes in the reform of our commercial law, have deemed it expedient to give to merchants, and others engaged in business, an opportunity of acquiring a knowledge of this branch of law, in the same manner as medical jurisprudence is taught to persons intending to embrace the medical profession; and, with a view to that effect, they have made the necessary arrangements with Mr. Leone Levi.

"The lectures are intended to be sufficiently numerous to comprise an exposition of the entire mercantile law of the United Kingdom, and that of those countries with whom our Commerce is chiefly carried on."

The above is copied from an advertisement of King's College. We transfer it to the pages of the Merchants' Magazine, together with the following syllabus of the course of lectures on commercial law, which were commenced on the 25th of January, 1853, in the hope that it will suggest to the Mercantile Library Associations in the United States the importance of instituting similar courses.

Lecture I. Introductory Lecture.-Study of Law-Nature and spirit of Mercantile Law-History of the science-Its component parts and plan of lectures -State of the law in England, Ireland, Scotland and the Colonies-Countries subject to the law of England.

Lecture II. On Merchants.-Who is a merchant?-Who may be a merchant? -Minors-Married females--Aliens--Clergymen--Commercial accounts--Fairs and Markets-Consuls-Commercial treaties.

Lecture III. On Partnerships.--Constitution of partnership-Actual and nominal-Who may be a partner?-Formation of the contract-Partnership en commandite-Rights and liabilities of partners among themselves-Their interest in the stock and profits--Obligations of partners.

Lecture IV. On Partnerships.-Liabilities and exemption of partners toward third persons-Rights of parties against third persons-Legal and equitable remedies between partners--Action by and against partners.

Lecture V. On Partnerships.-Dissolution of a partnership, when and how it may be-Effects and consequences of a dissolution, as between the partners—

Effects and consequences of a dissolution, as to the rights of creditors-Bankruptcy of partner-Administration and Practice in bankruptcy.

Lecture VI. On Joint-Stock Companies and Part Owners of Ships.-What makes a man a partner in a joint-stock company-Mutual rights of shareholders -Relative rights of shareholders and third persons-7 and 8 Victoria, c. 110— Banking companies--Part owners of ships-Interest of part owners--Mutual rights of part owners-) -Relative rights of part owners and third persons.

Lecture VII. On Bills of Exchange.-Definition, requisites, and form of bills of exchange-Parties to a bill-Transfer of hills-Acceptance--Presentment--Payment-Rights and duties of drawers and indorsers.

Lecture VIII. On Bills of Exchange.-Appropriation of payment-Protest --Acceptance for honor-Payment for honor-Notice of Dishonor-Remedy by action-Re-exchange-Lost bills--Promissory notes.

After the completion of this course, other courses are contemplated on the subjects of general contracts and contracts of sale, principal and agent, shipping, marine, life, and fire insurance, and bankruptcy; and also distinct lectures on American law, the French code, the Spanish and Portuguese codes, the territorial code of Prussia, and the Russian swod.

DAMAGES OCCASIONED BY COLLISION AT SEA.

In the United States District Court, befere Judge Nelson, (June 13, 1853.) Dickinson vs. The Schooner Catharine.

This was a suit to recover damages occasioned by a collision between the libelant's vessel, the schooner San Luis, and the schooner Catharine, which occurred on the evening of April 21, 1852, about 25 miles south of Sandy Hook.

The San Louis was bound from New York to Philadelphia with a cargo of stone, and was close hauled on her starboard tack, steering S. or S. by W., and and about four or five miles from shore, the wind being about S. W. by W., and the night clear enough to distinguish vessels at about a mile distant. She had a look-out and a man at the wheel, but no light.

The Catharine was bound into New York on her larboard tack, with a free wind-with no look-out, but with a light--and just before the collision there had been no one at the wheel, and she did not discover the San Luis till she was within half a mile.

Held, That under these circumstances, and under the rules of navigation laid down by the United States Supreme Court, in the case of St. John vs. Pain, 10 How. 557, it was the duty of the Catharine to have avoided the collision, and that no fault was discoverable on the part of the San Luis.

Decree for the libelants, with a reference to ascertain their damages.
For libelants, D. D. Field; for claimants, Betts & Donohue.

CONSIGNEES-DAMAGES FOR NON-DELIVERY OF TEN PIPES of WINE.

The Fifth District Court (New Orleans) before Judge Livingston, Joseph Martinez vs. Lanate, Gandolfo & Co.

This was a case in which the plaintiff claimed of defendants the value of ten pipes of wine purchased by him, and damages for non-delivery. The defendants, consignees of a quantity of wine, caused the same to be advertised and sold at auction, while the wine was still on shipboard. Fifty-five pipes were advertised and sold, the invoice to defendants showing sixty-five pipes, the consignees making an allowance for ten defective pipes. Twenty-five pipes proved defective, the wine thus falling short fifteen pipes of the quantity sold. The plaintiff's counsel contended, first, that the defendants were bound to deliver the quantity of wine in the order of sale. Only twenty pipes were sold previous to the plaintiff's purchase. The Court decided adversely to both the above positions of counsel, and held that the advertisements of consignees, acting in good faith, of sales of consignments still on shipboard, could only mean to specify the quanti ty "more or less," and that there was no custom or law which required delivery to be made in the order of sale. Judgment, however, was rendered in favor of the plaintiff for the value of the wine on other grounds.

DECISION IN ADMIRALTY, BY JUDGE HALL-PRIORITIES OF LIEN. United States District Court, Northern District of New York. Dewitt C. Bancroft vs. steamboat America and J. W. Phillips, claimant and respondent.

The vessel of the libelant having been sunk by a collision with the America on Lake Erie, July 12, 1852, a libel was filed to recover the damages, and on the 14th of December, 1852, $10,000 was awarded to him for the said damages. The America was sold by order of court, September 10, 1852, and the proceeds, amounting to $10,950, brought into registry.

Before the above-mentioued decree was made, suits were commenced by seamen to recover wages, and soon after the sale they were paid out of the fund, without opposition. A suit was also commenced, October 2, 1852, to recover damages occasioned by the previous collision of the America with another vessel. Suits were also commenced by material men to recover for supplies furnished to the America, and those whose liens attached subsequent to the collision with the libelant's vessel, and who had possession of the America, and common law liens, or liens under the State statute, were also directed to be paid out of the fund, though opposed by the collision claimant. The libelant then claimed by petition the whole residue of the fund, on the ground that he was entitled to preference over all the other parties.

Held, that the claim of the libelant for the damages occasioned by the collision was a maritime lien upon the America, or a charge or privilege which gave him substantially the same rights and remedies.

That maritime liens upon a ship, soid under the order of a Court of Admiralty, should, as a general rule, be paid out of the proceeds in the inverse order of the dates of their creation. These include wages, pilotage, towage, wharfage, claims for salvage, bottomry, damages for collision, and materials.

That this order of preference should be followed only when the liens all belong to the same class. But it is not intended to decide that a bottomry bond, executed by the owner, or claims under contract of freightment, are to be paid in the same order as though they were liens arising out of or founded upon the necessities of the ship. Nor is it intended to declare, that any difference will be made between seamen's wages for the same season of navigation on the lakes; or between the claims of material men who are concurrently giving credit to a vessel, in fiting her out for a voyage, or preparing her for business at the commencement of a season. A season of navigation on the lakes may be assimilated to a voyage.

That in a suit in rem, all persons have a right to intervene for their interest, and the suit is, in substance, against such persons, as much as if they were specially named as defendants--that they are bound by the proceedings and decree, and by a sale of the res under such proceedings, their rights therein are extinguished.

That a creditor who obtains a final decree before other creditors, having coordinate or equal claims, have brought their actions, is entitled to be paid in preference to those who do not assert their claims until after the entry of such final decree; but that such final decree may be opened, on sufficient cause shown, to enable the apparently tardy creditor to assert his claim; the interven tion of a creditor, for the purpose of obtaining payment of his claim concurrently with, or in exclusion of, that of the libelant, being in the nature of a defense to the adverse claim of the libelant.

That the claims of bottomry, bondholders, and material men, are of equal validity, and should be subject to the same general rules of priority and preference, and that the libelant's claim for damages should be considered of equal rank with the latter.

LIABILITY OF SHIP OWNERS.

In the Court of Queen's Bench, (England,) the case of Baring Brothers vs. Twizell, was tried before the the Lord Chief Justice. The plaintiffs were Messrs. Baring Brothers, merchants; and the defendant, John Twizell, a ship-owner at

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