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to the Chase National Bank for payment, and payment upon banker, it is true, and against deposits made to refused upon the ground that the assignee had noti meet them; and it might be difficult to say why any fied the bank to pay no drafts. The bank had moneys distinction should be taken between checks and such belonging to Angell, at the date of the drafts, more drafts as to the rules which should govern the rights than sufficient for their payment, and continued to of the parties. We have no occasion in this case to have until the time of presentation. Hart, the assig consider whether a distinction exists, because we think nee, failed to give bond as such, and under the statute it clear that if it could be held, as some courts do hold, the respondent, Carmer, was appointed receiver, to es that the payee of a check drawn against actual deposits ecute the trust in his stead. The Chase National Bank may sue the banker who refuses to pay it, it would be imthen paid over to the receiver the balance which was possible to so hold in the case of a draft without disre. due to Angell when he assigned. On this state of facts garding long-settled rules. The cases of Williams v. the petitioner claimed to be entitled to payment of his Everett, 14 East, 582, 597; Yates v. Bell, 3 Barn. & Ald. drafts in full from the amount paid over to the re 643; Hopkinson v. Forster, L. R., 19 Eq. 74; and Citiceiver by the Chase National Bank, and he petitioned zens' Bunlc v. First Nat. Bank, L. R., 6 H. L. 352; S.C., the Circuit Court for an order directing such payment 7 Moak, 56, are sufficient to show that the law in Engto be made. The receiver contested his right, insist land is that the drawee of a bill of exchange is liable ing that he must receive proportionate payment with on it only after he has become acceptor. The same other creditors; but the Circuit Court made the order rule is recognized in Mandeville, v. Welch, 5 Wheat. prayed for. The receiver appeals.

277, 283, and Bank of Republic v. Millard, already It is contended on the part of petitioner that a cited. banker's sight-draft is in legal effect a check, and that In Gibson v. Cooke, 20 Pick. 15, it appeared that a if there are in the hands of the drawee funds for its party had drawn a bill which was dishonored for want payment the payee is absolutely entitled to payment of funds. Afterward the drawer remitted funds exfrom such funds, and cannot be deprived of this right pressly to meet that and another small bill which had by any action of the drawer, or of the assiguee or re previously been drawn. The drawee paid the small ceiver of the drawer who would stand in his shoes. It bill, but refused to pay the other. It was held that is further contended that the holder of the draft may the payee could not maintain an action agaiust the bring suit against the drawee for the amount if the drawee for the amount, there being no privity of conlatter refuses to make payment, and that in effect he tract between them. If any case could be conceived has a lien upon the fund, and may follow it into the whose facts would support such an action, this must receiver's hands if it is paid over to him. And several be such a case, for here the funds were remitted for cases are cited in support of these positions. The doc the express purpose of paying the bill sued upon. To trine that a banker's draft, drawn and payable within the same effect are Bullard v. Randall, 1 Gray, 605; the country, is in legal effect a check, is held by a di Hopkins v. Beebe, 26 Penn. St. 85; Jermyn v. Moffitt, 75 vided court in Roberts v.Corbin, 26 lowa, 315, in which id. 399; Gibson V. Finley, 4 Md. Ch. 76; Poydras v. case it was also held that the holder of a bank check Delamare, 13 La. 98; Harris v. Clark, 3 N. Y. 118; drawn against funds sufficient for its payment may Cowperthwaite v. Sheffield, id. 243; Winter v. Drury, 5 maintain suit for the amount against the bank if pay id. 525; Noe v. Christie, 51 id. 273; Duncan v. Berlin, 60 ment is refused.

id. 151; Tyler v. Gould, 48 id. 682; Risley v. Phænix The case of Munn v. Burch, 25 Ill. 35, is relied upon Bank, 83 id. 318; Bank of Commerce v. Russell, 2 Dill

. as authority. An examination of the facts in that case 215; Bank of Commerce v. Bogy, 44 Mo. 13; Weinstock will show very clearly that the question supposed to v. Bellwood, 12 Bush, 139; Caldwell v. Merchants' Bank, have been decided by it did not arise at all, for the U. C., 26 ('. P. 294. check which was in question had actually been re The reason for these decisions is found in the fundaceived by the bank on which it was drawn, and actu mental rules governing this class of paper. The drawer ally charged up to him ou his pass-book. The court by drawing and delivering the paper to the payee, went beyond the case, and expressed an unnecessary agrees that if duly presented it shall be accepted aud opinion, which in Chicago, eles, Co. v. Stanford, 28 Ill. paid by the drawee, and that in default thereof he 168, and Union Bunk v. Oceana Bank, 80 id. 212, has will, if duly notified of the dishonor, pay it himself. been followed as authorities. See also to parties v. State The drawee enters into no contract relations with the Banke, 12 Rich. 518; Lester v. Given, 8 Bush, 357. But payee in respect to it until it is presented to him, uor the great weight of judicial authority is unquestion then unless he does so by acceptance. If he acably to the contrary of this.

cepts he undertakes to pay according to the terms of In Bank of Republic v. Millard, 10 Wall. 152, 156, the bill or of the acceptauce; but up to the time of that Davis, J., speaking for the court, says. “It is no act the payeo looks exclusively to the drawer for his longer an open question in this court since the decis protection. If the drawee refuses to accept when he ion in the cases of the Marine Bank v. Fulton Bank, 2 has funds for the purpose, he becomes liable to the Wall. 252, and of Thompson v. Riggs, 5 id. 063, that the drawer for the wrong done to his credit. Marzetti v. relation of banker and customer in their pecuniary IVilliams, 1 Barn. & Adol. 415; Rollin v. Steward, 11 C. dealings is that of debtor and creditor.” He adds B. 595. But the payee can maintain no such action, that on principle there can be no foundation for an for the plain reason that until acceptance the draweo action on the part of the holder of a check against the owes to the payee no legal duty whatever. An action bank, unless there is privity of contract between him at law must be grounded on some failure in the perand the bank. “How can there be such a privity formance of legal duty. when the bank owes no duty and is under no obliga It is said a draft should be considered an assigntion to the holder? The holder takes a check on the ment of so much money in the payee's hands. If this credit of the drawer in the belief that he has funds to were so then drafts would operate as assiguments in meet it; but in no sense can the bank be said to be the order in which they were given, and should be connected with the transaction." See also First Nat. paid in that order. But to so hold would be to introBank v. Whitman, 91 U. S. 313. Many cases might be duce a new and vicious rule into the law of commercited to the same effect if it were needful, but we think cial paper. The well-understood rule—and we may the case of Perley v. County of Muskegon, 3:2 Mich. 132, add the convenient rule-now is that the drawee, recognizes the same principle.

when a draft is presented, should pay it if he has This case however is not the case of a check, but of funds, and is not concerned with the question whether bills of exchange. The bills were drawn by banker drafts of prior issue do not remain uupaid. But if &

draft operates as an assignment, then either he would person injured or killed did not by his own want of pay at his peril, or the payee receiving payment would ordinary care contributo to produce the accident. be liable over to the holder of a prior unpaid draft for Gleason v. Bremen, 50 Me. 222; State v. Grand Trunk money received to his use. This rule would greatly RY., 58 id. 176. and injuriously affect the value of this class of paper In the case first cited it was held that the law is clear for commercial purposes. Something has been said in and unquestioned that the plaintiff must satisfy the the case about this being an equitable proceeding, as if jury, as an affirmative fact to be established by him, that should make a difference in the rules that should as a necessary part of his case, that at the time of the be applied to it. But in no proper senso is this ani accident he was in the exercise of due care. And in equitable proceeding at all. The receiver is appointed the secoud case cited it was held, after a full and careful by an order made on the chancery side of the court, examination of the question, that in tho trial of inbut this merely puts him in the place of the assignee dictments against railroads to recover the forfeiture who failed to give bond, and in order that creditors created by our statute for negligently causing the may enforce through him their legal rights. When death of a person, “the same rules of evidence and Angell failed, this petitioner had certain legal rights the same principles of law should be applied, as in in respeot to this paper, and theso rights qualified the like cases wheu redress is sought by a civil action for rights of all other creditors. The failure of Angell, damages.” and the appointment of this assigneo could not in. We must therefore regard it as settled law in this crease this petitioner's rights at the expense of other State, that in this class of cases, whether in forma civil creditors. It leaves them as they were, to be enforced or criminal, the burden of proof is upon the party by such remodies as shall be appropriate. The statute prosecuting to show due care on the part of the perwhich prescribes this particular remedy has no pur son injured or killed, at the time of the accident; or pose to modify rights in any manner. But if this were in other words, that his want of due care did not constrictly an equitable proceeding, it would make no dif tribute to produce the injury complained of. ference. Courts of equity have no different rules in In this case there is not only a total want of such respect to the rights and obligations of parties to ne evidence, but the proof, as far as it goes, tends gotiable paper to those which are recognized in courts strongly to establish the contrary. No one witnessed of law, but they recognize and enforce the same rules, the accident except the engineer and fireman on the and there would be gross injustice in their doing other train. The engineer's account of the transaction is, wise. Some of the cases above cited in support of these that as he approached the crossing, and when the engine views were cases in equity.

was not over fifteen feet from it, the horse came right The order of the Circuit Court is erroneous, and up into the head-light, and the pilot of the engine took should be set aside.

right under the sleigh, and threw the deceased right Campbell and Champlin, JJ., concurred.

up on to the head-board; then be stopped the train as [See Dickinson v. Coates, 79 Mo. 251; S. ('., 49 Am.

soon as he could, and went forward and found the Rep. 228.]

man dead upon the front of the engine. The fireman says he saw nothing till they went on to the crossing;

that he then got a glimpse of a horse and saw a man NEGLIGENCE CROSSING RAILROAD TRACK

come up on to the pilot. These are the only accounts CONTRIBUTORY NEGLIGENCE.

we get of the transaction. Ilow it happened that

the deceased drove on to this crossing directly in MAINE SUPREME JUDICIAL COURT.

front of an approaching train is left to conjecture

alone. STATE V. MAINE (ENTRAL RAILROAD) (0.*

It is claimed that no bell was rung or whistlo One in the full possession of his faculties, who undertakes to sounded; and that in consequence of this failure the

cross a railroad track at the very moment a train of cars deceased was not apprised of the approach of the train. is passing, or when a train is so near that he is not oniy The evidence seems to us to preponderate most overliablo to be, but is in fact, struck by it, is prima facie whelmingly in favor of the fact that the bell was rung guilty of negligence; and in the absence of a satisfacinsy and the whistle sounded. But suppose they were not, excuse, his negligence must be regarded as established,

still it seems to us impossible to beliere that the deN

ceased undertook to cross the track in ignorance of the dictment against the Maine Contral Railroad Com

approach of the train. He was a man of mature years, pany for negligently causing the death of Adoniram

and in the full possession of his faculties. IIis sight Judson Pickard at a railroad crossing in Carmel, on

and hearing were good. He lived in the immediate the 26th day of December, 1882, prosecuted for the neighborhood of this crossing, and must have been benefit of his widow and children. The opinion states acquainted with the time and speed of the trains. The the material facts.

evening was still, and the ground frozen, and tho

rumbling of the train could be heard at a great disJ. Hutchings and F. II. Appleton, for State.

tance. The head-light was on, and the cars all lighted, IT'ilson Woodward, for defendant.

and the deceased's view of an approaching train for a WALTON, J. This is an indictment against the Maine

considerable portion of the way as he drove from his

house to the crossing uuobstructed. If under these Ceutral Railroad Conpany for negligently causing the

circumstances the deceased undertook to cross the death of a person. It appears that on December 26,

track in ignorance of the approach of the train, the 1882, at about half past six o'clock in the evening, Dr.

inferenco is irresistible that he did not exercise that dePickard of Carmel, in an attempt to cross the railroad with

gree of vigilance which the law requires. Ile could horse and sleigh, was struck by a passing train

not have used his eyes nor his ears as the law required and instantly killed. A trial has been had and a ver

him to use them. The fact nuust not be orerlooked dict of guilty returned against the railroad. The question is whether the evidence justified this verdict. Wo

that the train was very near, as otherwise he would think it did not.

not have been struck by it. Ono in the full possession It is settled law in this State, that in prosecutions of

of bis faculties, who undertakes to cross a railroad this kind, whether in form civil or criminal, the bur

track at the very moment a train of cars is passing, deu is upou the party prosecuting to show that the

or when a train is so near that he is not only liable to

be, but is in fact, struck by it, is prima facie guilty of *S. C., 76 Mo. 357.

negligence; aud in the absence of a satisfactory ex

ON

cuse, his negligenco must be regarded as established. negligence per se, and to be so declared by the court; The excuse offered in this case is not satisfactory. The that it is not so important to the railroad companies evidence so overwhelmingly preponderates in favor of as to the travelling public; that the omission of this the fact that the bell was rung and the whistle sounded duty often results in collisions by which the that we cannot regard the alleged negligence of the lives of hundreds of passengers are lost; and that railroad company in these particulars as proved. But travellers should be taught that the performance of if we concede that this was a question of fact for the this duty is due, not only to themselves, but to jury, and that the court has no right to interfere with others also. their finding, still the inference is irresistible that the In Railroad v. Crawford, 24 Ohio St. 631, the law deceased did not exercise that degree of vigilance upon this subject seems to us to be stated accurately. which the law requires, or he would have known of the It is there said that unquestionably ordinary prudence approach of the train without these signals. And if requires a person in the full enjoyment of his faculnot ignorant of its approach (which we believe to be ties, before attempting to pass over a known railroad the fact) then the relation of cause and effect between crossing, to use his faculties of hearing and seeing for the alleged negligence and the accident is wanting; the purpose of discovering and avoiding danger from and the verdict must be regarded as wrong upon tbat an approaching train; and that the omission to do so, ground. It is not enough to establish negligence and without a reasonable excuse therefor, is negligence, an accident. It must also be shown that the neglia and will defeat an action to recover for an injury to gence was the cause of the accident. An omission to which such negligence contributed. ring the bell or sound the whistle could not have been In Duscomb v. Ratlroad, 27 Barb. 221, it is said in a the cause of the accident if the deceased had notice of case very similar to the one we are now considering, the approach of the train by other means. Our belief that when negligence is the issue, it must be a case of is that the deceased did have such notice; that he unmixed negligence; that this rule is important, salucould not have been so unobservant as to neither see tary in its effects, and should be maintained in its nor hear the approach of that train; and consequently purity; that the careless are thereby taught that if that the alleged negligence in omitting to ring the bell they sustain an injury to which their own negor sound the whistle could not have been the cause of ligence has contributed, the law will afford them no the accident. But if he did not have such notice; if redress. he drove on to that crossing in total ignorance of the In Wilcox v. Railroad, 39 N. Y. 358 (a case in every approach of a train; then the conclusion seems to us essential particular like the one now under considerinevitable that he must have been exceedingly negli ation), the court held that when one is killed in atgent in the use of his eyes and his ears. So that tempting to cross a railroad track within the limits of whichever view we take, the verdict is clearly wrong. a public highway, and at a public crossing, if it appear In the one case the want of the relation of cause that the deceased would have seen the approachiug and effect invalidates it; in the other, contributory cars, in season to have avoided them, had he first negligence.

looked before attempting to cross, it is to be presumed Similar views are expressed and similar conclusions that he did not look; and that by omitting so plain sustained, even to those States in which it is held that and imperative a duty, he will be deemed to have been the burden of proof to show contributory negligence guilty of negligence, which precludes a recovery; that is on the defendant. A fortiori they ought to prevail, in crossing a railroad track ordinary sense, prudence, where, as in this State, the burden of proof is not and capacity require a traveller to use his ears and upon the defendent to show contributory negligence, eyes so far as ho has an opportunity to do so, and a but upon the party prosecuting to show the absence failure to do so is negligence sufficient to preclude & of it.

recovery for any injury ho may receive, in case of aoIn Railroad v. IIeileman, 19 Penn. St. 60, the court cident; and that the negligence of the company in not held that the omission of a traveller when approach- ringing the bell or sounding the whistle is no excuse ing a railroad crossing to look and listen for approach for the traveller's neglect. After citing many authoring trains is negligence per se; not merely evidence of ities, Mr. Justice Miller said: The effect of the cases negligence, but negligence itself, and should be so de cited is to sustain the principle, that where the negliclared by the court, and not submitted to the jury; gence of the party injured or killed contributes to that while it is true that what constitutes negligence produce the result, he cannot recover; and tbat the is generally a question of fact for the jury, it is not omission of the company to ring the bell or sound the always so; that when the law fixes the standard of whistlo near the crossing of a highway does not reduty, an entire omission to perform it is not merely lieve the person who is about to pass over the highevidence of negligence to be submitted to a jury, it is way from the obligation of employing his sense of negligence itself, and should be so declared by the hearing and seeing, to ascertain whether a train is apcourt; that even on a common road, travellers must proaching. look out for the approach of other vehicles passing; lu Railroud Co v. Houston, 95 U. S. 697, it was held that this is more necessary at railroad crossings, be that the omission of the engineer in charge of a railcause movenients upon a railroad are more rapid, and road train to sound its whistle or ring its bell does not because the consequences of a collision are likely to be relieve a traveller from the necessity of ascertaining more disastrous; that precaution, looking out for dan by other means whether or not a train is approaching; ger, is a duly imposed by law, and that to rush heed that negligence of the employees of the company is no lessly on to a crossing over which the law allows en excuse for negligence of the traveller; that the travelgines of fearful power to be propelled, without look ler upon the highway is bound to listen and to look, ing and listening for a coming train, is not merely an before attempting to cross a railroad track, in order to imperfect performanco of duty, it is an entire failure avoid an approaching train, and not to go carelessly of performance.

into a place of possible danger; that if he omits to And in Railroad v. Beale, 73 Penn. St. 504, Mr. Jus look and listen, and walks thoughtlessly upon the tice Sharswood, in delivering the opinion of the court, track, or if looking and listening, he ascertains that a says that there never was a more important principle train is approaching, and instead of waiting for it to settled than that which declares that the omission to pass, undertakes to cross the track, and in either case look and listen for the approach of trains before at receives an injury, he so far contributes to it as to detempting to cross a railroad track, is not merely evi-l prive him of all remedy against the railroad company; dence of negligence to be submitted to a jury, but that if oue chooses to tako risks he must suffer the

consequences; that they cannot be visited upon the the undivided half of said premises, according to the railroad company; that in such cases it would not bo intention expressed in said limiting clause, alleging a error to instruct the jury peremptorily to return a ver mistake in the granting clause of said deed in that redict for the defendants.

spect. The respondent replied to said answer, denyThe cases in which similar views are expressed are ing the allegations of said counter-clain, and alleging very numerous. But the soundness of the views ex the estoppel of said appellants from setting up such pressed in the cases already cited is so self-evident, counter-claim by the former trial and judgment, aud that we deem it unecessary to cite other cases to sup that if there was such mistake in said deed, still the port them. It will be seen that it is not important to same should not be corrected, because Martin should be determine whether Dr. Pickard's negligence consisted adjudged to have held the half of the estate so conin not ascertaining that a train was approaching, or in veyed by mistake to use of the plaintiff. knowingly attempting to cross in front of it. In To these issues tho evidenco was addressed. The either case it defeats a recovery. And in the latter findings of the court are mainly the history of the title case, for the further reason that it destroys the rela to this tract of land, and only three findings of fact tion of cause and effect between the alleged negligence are necessary to be noticed in passing upon the quesof the defendants and the accident.

tions raised and so ably argued on this appeal: First, [Omitting minor point.]

that it was the opinion of Martin that he only acMotion sustained and the verdict set aside. quired, by the said sheriff's deed, the individed onePeters, C. J., Danforth, Virgin and Libbey, JJ., con

half of said premises conveyed to the respondent becurred.

fore, and held by it at the time of, said sale, and that it was not his intention to convey any other interest

or estate to the respondent; second, that the mistake MISTAKE REFORJATION OF DEEI),

of Martin in conveying to the respondent the whole of

said tract, instead of only an undivided half thereof, WISCONSIN SUPREME COURT, OCTOBER 14, 1881.

was a mistake of law, and not a mistake of fact; and GREEN BAY, ETC., CANAL Co. v. HEWITT.*

third, that if it was a mistake of fact, the deed The absolute owner of land conveyed it hy deed, which after

ought not to be corrected in that respect, because it

placed the legal title of the whole tract where it begranting all his estate in the land, declared in a subsequent clause that the interest and title intendeul to be con

longed in equity. The counterclaim was therefore dis

missed on its merits. veyed was only that acquired by virtue of a certain sheriff's deed, which was in fact an undivided one-half only.

The various exceptions to evidence and to the find

ings need not be specially noticed any further tban to All parties to the couveyance intended that it should embraco such undivided one-half only,and supposed that the

say that they sufficiently raised the questions predeed was so drawn as to effectuate such intention.

sented by counsel. These questions will be disposed

of in their natural order: First, is the plaintiff estopHeld, that although the limitation of the grant was ineffect

ped by the former trial and judgment from settlug up ual because inserted after and not in the granting clause,

a mistake in the deed and from asking its reformait was nevertheless conclusive as to tho intention of the

tion? Second. Was there any mistake shown by the parties, and whether the mistake was one of law or of fact, the deed might be reformed to accord with such in

evidence, and if 80, was it such a mistake as can be tention.

corrected in equity? Third. If so, had the respondent such an equitable interest in the undivided half of

the premises not intended to be conveyed by said The states facts.

deed, but which nevertheless was so conveyed thereby Moses Hooper, for respondent.

that the deed ought in equity to stand uncorrected, as D. S. Ordway and W. P. Lynde, for appellants.

conveying the legal title to the respondent as the party

entitled in equity thereto, C. (quo et bono. Orton, J. This is an action of ejectment, in which 1. As to the estoppel it may be well to see whether both parties claimed to hold the premises in dispute there is any thing in the counter-claim inconsistent under and from Morgan L.Martin, the plaintiff and re with the defenso relied upon on the former trial. The spondent, by his deed of May, 1873, and the defendants answer was a general deninl, and the appellauts relied and appellants by his deed of January, 1880. In the

upon the deed, as by its terms and effect, and its truo deed to the respondent the grant was of the whole construction in reference to the subject-matter and tract, but thereinafter thero was a clause which limited circumstances of its execution, conveying only an unthe grant to the interest aud titlo acquired by said

divided one-half of the premises, and insisted that the Martin, by virtue of a deed execute to him by ono limitation clause therein had so modified the grant, Evarts, as sheriff of Outagamie county, dated Decem and that the deed should be so construed, but by force ber 23, 1871, which clearly conveyed only an undivided of a technical rule of law that clause could not have half of said tract. In this case, reported in 55 Wis. such effect, and tho dced could not be so construed. 96; S. C., 12 N. W. Rep. 382, it was held by this court

In the counter-claim tho appellant still insists that that such limiting clauso is inconsistent with tho such limitation clause shall have effect in equity as exgrant, and is nugatory, and that the grant must pre- pressing the intention of the parties, and that the vail. In the case as it thus stood the respondent

grant should be so limited by a correction and reformrested upon that deed, in its terms, effect and con ation of the deed, and that both parties beliered, and struction, insisting that it conveyed the whole tract, were mistaken in believing, that the deed itself had and therefore the undivided half in dispute. Tho

the legal effect of conveying only one-half of the premjudgment of the ('ircuit Court against the appellants ises, and they, the appellants, now ask that such muwas atfirmed. Within the proper time the appellants tual mistake may be corrected. When the deed is rewade application for the vacation of said judgment, formed as prayed, then it will have the precise effect and for a new trial under section 3092, Rev. Stat., and which the appellants insisted that it did have standing the judgment was vacated and a new trial was

uncorrected on the former trial. Precisely the same granted. The appellants thereupon amended their object was sought on both trials, which was that the answer, setting up an equitable counter-claim for the

deed should have the effect to convey only the onereformation of said deed, so as to make it convey ouly half on the first trial by the deed as it was, and on the *S. C., 21 Northwestern Reporter, 216.

last trial by the deed reformed. The maxim allegans

APPEA Up from Cires the course Outagamie county.

contraria non est audiendus can scarcely apply to these recovery, aud that the complaint should have been two defenses.

amended, setting up that tbe contract was void for that The respondent has not been prejudiced or its rights reason, and the plaintiff should have recovered the affected one way or the other by the appellant's having money paid upon it, and reversed the judgment and on the first trial relied upon the deed itself as uot con granted a new trial. veying the whole premises, and has not been influ Steinbach v. Insurance Co., 7 N. 498, 'there enced in its action either in court or in puis by the ap was a judgment against the plaiutiff in his action on pellant so iusisting. There was no judgment in the the policy which had been affirmed by the Supreme action when the new defense was interposed, as it had Court of the United States, and was placed in bar of been vacated, and the action was to be tried as if it the suit to reform the policy. But here there is no had never been tried, and as an original action, and the judgment in the way. The case cited by the learned two defenses, one on the deed itself as not conveying counsel of the respondent (IV ashburn v. Insurance Co., the whole tract, and the other for the reformation of 114 Mass. 175) illustrates this principle fully. A bill in the deed if necessary to that effect. If there had been equity was pending to reform the policy, and the no trial or judgment in the case, there can be no doubt plaintiff brought auother suit upon the policy, allegthat both of these defenses could be interposed to the ing compliance with its terms, and after a trial aud action. There has never been a trial or judgment, so judgment against him therein, he was held to have far as the present trial is conoerned. The action is waived his right to prosecute further his bill. It may fully open to be tried de novo. If the Circuit Court be observed that he was allowed to prosecute his sechad the discretion to allow such an amendment of the ond suit, notwithstanding the peudency of the first. answer, and of that we have no doubt, it follows that It was the judgment that stood in his way, and such the answer may be proved. The amendment was made was the case of Sanger v. Wood, 3 Johns. Ch. 416, cited without objection, and issue taken upon it by a repli- by the learned counsel. The plaiutiff took judgment cation. The first answer admitted nothing favorable on the coutract, and afterward sought to set aside the to the respondent, nor was any proof offered uuder it contract on the ground of fraud. Without any disrethat placed the respondent in any more favorable posi- spect to the learned counsel, it may be said that none tion than it occupied before.

of the authorities cited by him are in the way of allowMr. Bigelow, in his work on Estoppel, 604, says, in ing proof of this counter-claim. The rights of no the text: “When then no wroug would be done to the one aro affected, and much less fixed and determined, court or to other parties to a cause by permitting a by the first trial and judgment, since such judgment is change of position, a change should in principle, and vacated and a new trial granted. The authorities cited will in fact, be allowed. Thus where a party has given are not applicable to such a case, and the doctrine of notice of appeal by mistake to a particular court, estoppel is misapplied. Cunningham v. Milwaukee, 13 when the appeal should have been made to another Wis. 120, does not bear ou this question. The second or court, and has discovered his mistake before any step new trial in ejectment, under the statute, must of has been taken by others in consequence, he may at course be on the same cause of action. That cannot will correct himself, but only upon the footing that no be changed by amendment so as to make another projudice is done to others. In Favill v. Roberts, cause of action in any case or at any stage of the pro50 N. Y. 222, the plaintiff brought an action for the ceeding, but that does not imply that the answer may purpose of procuring titlo to a farm which he had pur not be amended and other defenses interposed, alchased of the executor of John Roberts, of whom the though inconsistent. defendants were heirs. The land had been sold and 2. Was there any mistake shown by the evidence, paid for under an order of court, and improvements and if so, was it such as may be corrected in equity? had been made by the plaintiff, when it was discovered We are entirely satisfied that there was a mistake in that the court had no authority to grant the order for drawing the deed. The mistake was in not limiting the conveyance of the land. The plaintiff now sought the grant to one undivided half of the tract, by apt to enforce a remedy against the heirs at law, and to words in the granting clause of the deed, instead of compel a conveyance, on the ground that the executor undertaking to so limit the graut by this independent acted with the consent and approbation of the heirs, clause thereinafter inserted. Both parties uuquesand that they encouraged the sale. It was held that tionably understood and intended that the deed the plaintiff was entitled to his remedy.” Bigelow should be a conveyance of only one-half, and both Estop. 595. Those two causes of action were far more parties supposed that it was so drawn. The evidence inconsistent than the two defenses in this case.

is overwhelming that both parties intended that the The granteo of land conveyed by an intestate with conveyance should be made for only one-half. Nothintent to defraud his creditors is not estopped by tak-ing else had ever been spoken of. Martiu held the lieu ing under the deed and acting upou it to object, as one of his judgment against a portiou of the canal and of the creditors of the estate, that the deed was fraud-works, and this undivided one-half of this hydraulic ulent." Norton v. Norton, 5 Cush. 524.

tract, which belonged to the canal company. The A case in point is that of N. W. U. P. Co. v. Shaw, United States, through proper officers, refused to pay 37 Wis. 655. The company purchased from Shaw a the award until this incumbrance was removed. Iu quantity of wheat, to be delivered, and paid down the meantime Mr. Martin had this interest sold under upon it $1,000. Shaw failed to deliver the wheat, and execution, and bought it in and received the sheriff's the company brought suit upon the contract, and deed, which covered nominally tho whole tract, but claimed – First, the $1,000; secondly, damages for the conveyed only the interest that the canal company had breach of the contract; and thirdly, damages for the in it, which was only one-half. It was the business of value of the use of a barge detained for the carriage of Mr. Stevens, on behalf of the company, to obtain this the wheat. On the trial the Circuit Court held that title froin Mr. Martin. the contract was ultra vires and void, the company The United States government was only interested having no power to make such a contract for the pur in having a clear title to the canal and works which it chase of wheat, it being a common carrier only, | bad bought of the canal company, but Mr. Martin and judgment was rendered for the defendant. On ap- wished to have his whole claim paid, and to convey the peal to this court is was held that the Circuit Court interest which he held by the sheriff's deed. It was properly decided to contract to be ultru vires and void ; pot contemplated that he should convey only his inbut that was no ground for defeating a recovery of the terest in the canal, and retain his interest in the hy$1,000 paid upon it, but rather good ground for such draulic tract. It was one transaction, which embraced

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