Common Pleas—Rawlings v. Bell. Rose and Crown, Clare-court, Clare-mar-| the defendants, as of his separate properket, in the parish of St. Clement Danes, ty. Supposing here, that the warrant in the county of Middlesex, for the sum signed by the wife, as an authority for the of £39 7s. 68., for arrears of rent due and broker to distrain, does involve a repreowing to me at Michaelmas-day last, and sentation by the wife that she had a right proceed therein as the law directs, for to distrain, still she would not be alone which this shall be your sufficient warrant responsible for it unless she made it fraud. and indemnity against any suits or actionsulently. In all the cases in which an acat law or otherwise, that may be brought tion in tort like the present has been held against you for this distress. Dated this maintainable, there was either a false and 25th day of October, 1842. Landlady fraudulent representation, or a contract of the said premises,

and indemnity express or implied. In

“Jane Bell. Toplis v. Grane, 5 Bing. N. C. 636, the “N. B.-If the goods are clandestinely defendant, who had authorized the plainremoved, I undertake to bear you blame- tiffs to distrain, gave the plaintiffs an inless for the same."

demnity, and, therefore, was held liable, The plaintiff afterwards proceeded to

to So, in Adamson v. Jarvis, 4 Bing. 66, there the premises in company with both de

he was an authority by the defendant to the fendants, and a person of the name of a

of auctioneer to sell the goods, from which Smith, and levied there the distress. Do- ai

J an indemnity was implied. And in Humver subsequently replevied, and recovered

versi phreys v. Pratt, 5 Bligh, 154, the same in the replevin suit against the present

was implied, because the defendant had plaintiff a judgment, which the plaintiff even a spe

Jaintiff given a specific authority to the sheriff to was obliged to satisfy, as stated in the

take the cattle in execution. But here, above declaration. The learned judge

as the wife was not able herself to condirected the jury in the present action to

tract, so as to give an indemnity, she canfind for the defendants on the issue under

not be liable, except for a tort committed not guilty, unless they believed from the

by her fraudulently--that is, with knowevidence that the representation by Mrs.

ledge of the representation being false; Bell, as to her right to distrain, was false,

neither can the husband be liable, as he and made by her with a fraudulent inten

? is here sought to be made, jointly with tion. The jury found for the defendants,

e her, for the representation was not made and leave was reserved to the plaintiff to my

ntiff to by him, except so far as it may be said move to enter a verdict on such issue for ne adopted the representation of the wire. £66, if the court should be of opinion that the facts were such as would support the Ch

Channell, Serjit, (Petersdoff with him,) present action. A rule nisi having been com

contra. Though the wife may be alone btained in Easter term last to that effect charged for a tort committed by her, the

husband being only joined for conformity, Talfourd, Serj't, now shewed cause.— yet, where the tort has been jointly comThis action, though laid in tort, is founded mitted by the husband and wife, they may on a contract, and, therefore, the plaintiff be jointly sued for it. Vine v. Saunders must fail, unless he could prove a joint and wife, 4 Bing. N. C. 96. And the diccontract by the husband and wife, which tum of Bayley, J., in Keyworth v. Hill, there cannot be; for even should it be 3 B. & Ald. 685, is expressly to the effect, admitted that the husband by his presence that, in trespass, the husband and wife concurred in the giving to the broker the may be joined. Here, the representation authority to distrain, yet the wife cannot | by the wife was sufficiently shewn to have contract jointly with the husband. In been the representation of both the husWeall v. King, 12 East. 452, upon a de- band and wife, for it was not the less claration in an action on the case, alleging made by both because it was made in a deceit by means of a warranty made by writing by one only, and assented to by two defendants upon a joint sale to the the other. Collins v. Evans, 13 Law Jour., plaintiff of sheep, the joint property of N. S. Q. B. 180, though it reversed the both defendants, the plaintiff was held judgment of the Court of Queen's Bench, not entitled to recover upon proof of con- by which it had been held unnecessary to tract of sale and warranty by one only of prove that the representation was false Common Pleas.—Rawlings v. Beil.—Promissory Note-Notice of Dishonor to Guarantee. to the knowledge of the defendant, yet | maintain an action, although it was made shewed that Humphreys v. Pratt was de- without any intention to mislead, and cided on the principle, that the defendant without any knowledge that it was falsc. in that case had made the sheriff his man- | But it seems to us that a statement false datory. So, here, the husband and wife in fact, but not false to the knowledge had made the plaintiff their mandatory; of the party making it, nor made with any and, if these two can thus jointly commit intention to deceive, will not support an a tort, they were jointly liable, though action, unless, from the nature of the they might not have known that the re- dealings between the parties, a contract presentation was false. The expression to indemnify can be implied. In this case of Best, C. J., in Adamson v. Jarvis, was the right to maintain the action results approved of by Lord Denman, C. J., in from the alleged assertion of the wife tha: Betts v. Gibbins, 2 Adol. & Ell. 76, where she had a right to distrain; but there he says “In Adamson v. Jarvis, we have could be no retainer of the plaintiff to the observation of a learned person fa- distrain given by the wife, nor any conmiliar with commercial law. He says, tract of her to indemnify the plaintiff: her * Auctioneers, brokers, factors and agents representation, therefore, being made hondo not take regular indemnities. These estly, and without knowledge of its falsewould be, ir leed, surprised if, having sold hood, was not sufficient to give a right to goods for a man, and paid him the pro- an action. The plaintiff has endeavored ceeds, and having suffered afterwards in to get out of the difficulty that existed as an action at the suit of the true owners, to his maintaining an action from the imthey were to find themselves wrongdoers, plied contract to indemnify by the declaand could not recover compensation from ration of a tort; but, in the absence of him who had induced them to do the any such contract, we think it was essenwrong." This was, therefore, it is sub- tial to the maintenance of the action in mitted, a tort for which the husband and its present form that the falsehood of the wife were jointly liable, and the verdict representation should have been known to ought to be entered for the plaintiff. the party making it. We are of opinion

Cur. ad. vult.

the direction of the learned judge was

right, and that the verdict was also right; TINDAL, C. J., now delivered the judg- and the rule for entering a verdict for the ment of the court.-{After stating the plaintiff must be discharged. pleadings, his lordship said :-) At the trial of the cause before my brother Al

Rule discharged. derson, the evidence was, that the plaintiff Rawlings got a blank warrant and filled it up, and Mrs. Bell signed and gave it to him, and that she made no represen

PROMISSORY NOTE-NOTICE OF DISHONOR tation of her right to distrain, other than

TO GUARANTEE. was to be implied from her signing the By an agreement in writing, in considwarrant. On this state of facts the learned eration that the plaintiff would accept a judge directed the jury not to find for the promissory note of one Johnson, payable plaintiff on the first issue, unless they were six months after date, the defendant guar. satisfied that the statement that was given anteed to pay the amount of the note to when the plaintiff was employed to dis- the plaintiff in case it should not be hontrain was a false and fraudulent repre-ored and paid at maturity by Johnson. sentation; at the same time giving the The note not having been paid at matuplaintiff leave to move to enter a verdict rity, the plaintiff brought his action on for £66 if the court should be of opinion the agreement. The defendant pleaded that the mere omission to state all the that there had been no presentment to circumstances when signing the warrant Johnson, and also that he, the defendant, inade it a false representation, and a false- had received no notice of the dishonor of hood without fraud, which was sufficient the note. Per curiam,—The defendant, to support a verdict. On the part of the not being a party to the note, was not plaintiff it was contended, that the false- entitled to notice. Walton v. Murcall, hood of the statement was sufficient to! 13 Wees. & Wel. 72.

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Vol. IV.)

NEW-YORK, APRIL, 1846. [Monthly Part. OPERATION OF MORTGAGES AND BILLS be assigned, without interruption or dis

OF SALE ON AFTER-ACQUIRED PRO- turbance from the defendant. The dePERTY.

| fendant having entered upon the premises The class of cases in which a judicial | under color of the mortgage deed, and construction is put upon the language of seized the whole of the effects, including instruments constantly used, either for stock in trade and other property not on the transfer of property or for securing the premises at the time of the execution advances, is obviously one of great im- of the deed, the plaintiff brought trespass portance to the public, as well as of in- for the seizure of the goods which came terest to the legal practitioner; and when on the premises after the deed was execases of this nature are decided upon cuted. Patteson, J., who tried the cause, general principles, the application of told the jury, that under the mortgage which is not confined to the particular deed, the defendants were only entitled case under consideration, such decisions to such property as existed in specie at cannot be too soon or too extensively the time that deed was executed; and known to all branches of the profession. • upon this direction the plaintiff had a

We wish to draw our readers' attention verdict. to two cases of the description above al- A rule nisi having been obtained for luded to, in which the construction of an a new trial, on the ground of misdirecassignment by way of mortgage of per- tion, the defendant's counsel, in support sonal property, and a bill of sale, were of the rule, contended, that the situation respectively considered, and in both those of the parties and the nature of the procases the court held, that after-acquired perty left it clear beyond doubt, that the property did not pass under the instru-l parties must have intended that the deed ments in question.

should comprise the effects upon the preIn the earliest of these cases, Tapfield mises from time to time: otherwise the 5. Hillman, 6 Man. & G. 254, the plaintiff, security would be of little or no value. who was an inn-keeper, in consideration On the other hand, it was said in arguof a loan of £200, assigned to the defend- ment, that it was not clear an assignment ant wall and singular the household fur- could be made to comprise property not niture, plate, linen, china, glass, brewing in existence at the time of the grant; but utensils, post-chaises, carriages, horses, at all events that point did not arise here, flys, harness, stock in trade, goods, chat- as the deed by its terms did not profess tels, and effects of him the said J. Tap- to include property subsequently acquired, field, in, upon, about, or belonging to all and the court would not look beyond the that inn, &c.; and also the tap, yard, sta- deed to guess at the intention of the parbles, buildings, and premises adjoining orties. belonging thereto, as the same now are The whole court agreed, that the in the tenure or occupation of the said J. learned judge put the proper construcTapfield,” with a power of entry, con- tion on the deed at the trial, and that even taining an authority “to take possession, if it had been quite certain that the parhold, and enjoy all and every the goods, ties intended the deed should embrace chattels, effects, and premises,” to and for after-acquired property, that intention the defendant's own absolute use and be could not prevail, unless the deed connefit; with a proviso, that until default tained words sufficient to carry the intenwas made in payment of the £200, or the tion into effect. In the course of his judginterest, the plaintiff should hold and ment, Tindal, C. J., observed, that "it make use of the premises expressed to would have been very easy to have so


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Operation of Mortgages and Bills of Sale on after-acquired Property. framed the power of entry as to make it | 24; Grantham v. Hawley, Hob. 132; extend to all effects found upon the pre- and 2 Roll. Ab. 48, pl. 20. mises at the time that such power should The court took time to consider its be enforced," a dictum which, we shall judgment, which was afterwards profind, was afterwards questioned. There nounced by Tindal, C. J., who observed, does not appear to have been any author- that the question was not whether a deed ity cited at either side, either in the argu- might not be so framed as to give the ment or judgment.

| defendant a power of seizing the future The more recent case of Lunn v. Thorn- personal goods of the plaintiff which ton, 1 Man. Gr. & Sc. 379, is in accord- might be acquired by him and brought ance with the decision in Tapfield v. Hill- on the premises. The question was, man, but it is a stronger case, and appears whether by law a deed of bargain and to have been better considered. The sale of goods could pass the property in plaintiff, (Lunn,) who was a baker at goods which were not in existence, or at Stoney Stratford, in consideration of £112 all events which were not belonging to lent him by the defendant, executed a the grantor at the time of executing the deed, by which he bargained, sold, and deed. After a review of the authorities, delivered to the defendant “all and sin- the court thought that they were strong gular his goods, household furniture, to show, that no personal property could plate, linen, china, stock and implements pass by grant, other than that which bein trade, and other effects whatsoever, longed to the grantor at the time of the then remaining and being, or which execution of the deed. Perkins says, “it should at any time thereafter remain and is a common learning in the law, that a be, in, upon, or about his dwelling-house man cannot grant or charge that which at Stoney Stratford, &c., and also all his he hath not." The only point which the other effects elsewhere.” Under color court seemed to think admitted of doubt, of this assignment, the defendant after- was, whether the facts of the case brought wards entered upon the premises and it within the exception in Lord Bacon's seized certain goods then upon the pre- rule, (Reg. 14) " Licet dispositio de inmises, but which were not upon the pre- teresse futuro sit inutilis, tamen protest mises, or in the plaintiff's possession, at fieri declaratio precedens, que sortiatur the time of the execution of the deed, but effectum, intervenient novo actu.The were acquired by the plaintiff subsequent- question, therefore, was, whether the ly. An action of trover having been bringing the goods which were the subbrought to recover the value of the after-ject of the action on the premises after acquired goods, the question for the court the execution of the bill of sale, was such was, whether the bill of sale justified the a new act done by the plaintiff as gave seizure of those goods.

| the declaration in the bill of sale its effect. For the defendant it was contended, Lord Bacon's language was, “ that there that the bill of sale covered all the goods must be some new act or conveyance, to of the grantor that might be upon the give life and vigor to the declaration prepremises at the time of the seizure, cedent;" which pointed at some new act whether there at the time of the execu- to be done by the grantor in furtherance tion of the bill of sale or not; whilst the of the original disposition, and not the plaintiff's counsel submitted that the bill simple acquisition of property at a subseof sale could not operate to convey to the quent time, which, if sufficient, would defendant goods of which the grantor was render the rule itself altogether inoperanot, at the time of executing it, actually tive. Now, the evidence in this case was or potentially in possession; and it was silent as to the circumstances under which suggested, that the intimation of opinion the goods were brought upon the premithrown out by Tindal, C. J., in Tapfield ses, and the court could not say there had v. Hillman, that the deed might have been been any new act done by the grantor, framed so as to pass after-acquired pro- indicating his intention that those goods perty, was extra judicial, and not justified should pass under the previous bill of by any authority. The principal cases sale. The court was therefore of opinion, cited were Perk. tit. Grant, 65–90; Bac. that the property in the goods which were Max. R. 14. Shep. Touch. tit. Grant, p. the subject of the action was in the plainPractical Points.—Trade Marks—Injunction. tiff at the time of the seizure, and the the firm. In these circumstances, the verdict was accordingly entered for him. | defendant Day, a nephew of the testator,

The cases in the Common Pleas are induced a person of the name of Martin quite decisive to show, that a mortgage to join him, in setting up at No. 90 1-2, or bill of sale, in the form usually adopted Holborn Hill, an establishment for a blackin such instruments, will not pass after- ing manufactory, at which they had sold acquired property; but the question blacking, as of Day and Martin, in bottles whether a deed could be framed which labelled in a manner very much to rewould operate on goods not belonging to semble those sold by the original estabthe grantor at the time when he executed lishment. The only material difference the deed, does not appear to have been seemed to be, that the defendant had directly determined, and the form of such substituted the royal arms in the centre a deed has not even been suggested, so of his label, and the figures and words that the question may be said to be left 90 1-2, Holborn Hill, for 97, High Holso open as to afford ample exercise for born-a distinction which the public at the ingenuity of counsel.

large were very little likely to observe.

There were indeed several other lesser Practical Points.

marks of distinction which might be discovered on comparison, but the ordinary

run of persons would not on a casual inTRADE MARKS—INJUNCTION.

spection have been struck with any variIn a recent English case that came be- ance between them. The defendant, fore Lord. Langdale, the master of the however, contended, that he had a clear rolls, reported 6 Beav. 66, his lordship is right to affix his own name to his own reported to have inclined to the opinion manufacture, and that he had authority that there can be no property in a trade to add that of Martin. He moreover inmark; but he does not appear to have sisted, that the plaintiffs themselves were expressed himself very confidently on the guilty of a deception, by representing their point; and he suggested that it ought to manufacture to be that of Day and Marbe raised in an action to try the legal tin, who were respectively and had been right. He however refused the injunc- for several years in their graves ; there tion, on the ground that the plaintiff had being in fact no persons so named in the himself practiced a deception upon the establishment carried on by the plaintiffs. public, inasmuch as he had in his labels Lord Langdale, after remarking that what and cards described his own article (the was proper to be done in cases of this Mexican Balm for the Hair) as having kind, must more or less depend upon the been made from an original receipt of the circumstances and specialties which aclearned Von Blumenbach, whereas, in companied them-held, that upon the fact, its true inventor was quite a different whole, there was quite enough in the person and one of no celebrity. Lord conduct of the defendant, and the colorLangdale, in disposing of the case, said, able contrivances employed by him to he would follow the precedent made by mislead the bulk of the unwary public the Vice Chancellor of England, in Pud- into the impression that the new estabding v. How, 8 Sim. 477, the well known lishment was either identified with, or Howqua Tea case, where, on the ground was in some way connected with the of a similar misrepresentation, it was held more ancient firm or manufactory-and to be a clear and universal rule, that courts being of opinion that what had been done of equity ought not to extend their pro- was calculated to effect that end, and tection to parties whose cases are not thereby at once to benefit the defendant, founded in truth.

to injure the plaintiff, and to deceive the In a more recent case, Croft v. Day, 7 public, his lordship had no difficulty in Beav. 84, it appeared that the blacking issuing the injunction; the principle of manufactory of Day and Martin, which the decision being, that although the dewas originally carried on by persons so fendant had an undoubted right to the named, at No. 97, High Holborn, was use of his own name, and even of his now conducted by the executors of the partner's, he had no right so to use it as surviving partner, without any change in to deceive and defraud the public, and

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