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. 6d., 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 fraudand indemnity against any suits or actions ulently. In all the cases in which an ac at 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 Toplis v. Grane, 5 Bing. N. C. 636, the defendant, who had authorized the plaintiffs to distrain, gave the plaintiffs an indemnity, and, therefore, was held liable. So, in Adamson v. Jarvis, 4 Bing. 66, there was an authority by the defendant to the auctioneer to sell the goods, from which an indemnity was implied. And in Humphreys v. Pratt, 5 Bligh, 154, the same was implied, because the defendant had given a specific authority to the sheriff to take the cattle in execution. But here,

66

'JANE BELL.

"N. B.-If the goods are clandestinely removed, I undertake to bear you blameless for the same."

as the wife was not able herself to con

The plaintiff afterwards proceeded to the premises in company with both defendants, and a person of the name of Smith, and levied there the distress. Dover subsequently replevied, and recovered in the replevin suit against the present plaintiff a judgment, which the plaintiff was obliged to satisfy, as stated in the above declaration. The learned judge directed 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, is here sought to be made, jointly with and made by her with a fraudulent intention. The jury found for the defendants, her, for the representation was not made and leave was reserved to the plaintiff to by him, except so far as it may be said move to enter a verdict on such issue for he adopted the representation of the wife. £66, if the court should be of opinion that the facts were such as would support the present action. A rule nisi having been obtained in Easter term last to that effect,

Talfourd, Serj't, now shewed cause.This action, though laid in tort, is founded on a contract, and, therefore, the plaintiff must fail, unless he could prove a joint contract by the husband and wife, which there cannot be; for even should it be admitted that the husband by his presence concurred in the giving to the broker the authority to distrain, yet the wife cannot contract jointly with the husband. In Weall v. King, 12 East. 452, upon a declaration in an action on the case, alleging a deceit by means of a warranty made by two defendants upon a joint sale to the plaintiff of sheep, the joint property of both defendants, the plaintiff was held not entitled to recover upon proof of contract of sale and warranty by one only of

neither can the husband be liable, as he

And the dic

Channell, Serj't, (Petersdoff with him,) contra.-Though the wife may be alone charged for a tort committed by her, the husband being only joined for conformity, yet, where the tort has been jointly committed by the husband and wife, they may be jointly sued for it. Vine v. Saunders and wife, 4 Bing. N. C. 96. tum of Bayley, J., in Keyworth v. Hill, 3 B. & Ald. 685, is expressly to the effect, that, in trespass, the husband and wife may be joined. Here, the representation by the wife was sufficiently shewn to have been the representation of both the husband and wife, for it was not the less made by both because it was made in writing by one only, and assented to by the other. Collins v. Evans, 13 Law Jour., N. S. Q. B. 180, though it reversed the judgment of the Court of Queen's Bench, by which it had been held unnecessary to prove that the representation was false

Common Pleas.-Rawlings v. Bell.-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 false. 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 that 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, in 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 the direction of the learned judge was right, and that the verdict was also right; and the rule for entering a verdict for the plaintiff must be discharged.

Cur. ad. vult.

TINDAL, C. J., now delivered the judgment of the court.-[After stating the pleadings, his lordship said:-] At the trial of the cause before my brother Alderson, the evidence was, that the plaintiff Rawlings got a blank warrant and

Rule discharged.

TO GUARANTEE.

filled it up, and Mrs. Bell signed and gave PROMISSORY NOTE-NOTICE OF DISHONOR it to him, and that she made no representation of her right to distrain, other than was to be implied from her signing the warrant. On this state of facts the learned judge directed the jury not to find for the plaintiff on the first issue, unless they were satisfied that the statement that was given when the plaintiff was employed to distrain was a false and fraudulent representation; at the same time giving the plaintiff leave to move to enter a verdict for £66 if the court should be of opinion that the mere omission to state all the circumstances when signing the warrant made it a false representation, and a falsehood without fraud, which was sufficient to support a verdict. On the part of the plaintiff it was contended, that the falsehood of the statement was sufficient to

By an agreement in writing, in consideration that the plaintiff would accept a promissory note of one Johnson, payable six months after date, the defendant guaranteed to pay the amount of the note to the plaintiff in case it should not be honored and paid at maturity by Johnson. The note not having been paid at maturity, the plaintiff brought his action on the agreement. The defendant pleaded that there had been no presentment to Johnson, and also that he, the defendant, had received no notice of the dishonor of the note. Per curiam,-The defendant, not being a party to the note, was not entitled to notice. Walton v. Murcall, 13 Wees. & Wel. 72.

THE

New York Begal Observer.

VOL. IV.

NEW-YORK, APRIL, 1846.

[MONTHLY PART. OPERATION OF MORTGAGES AND BILLS be assigned, without interruption or disOF 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 verdict.

We wish to draw our readers' attention to two cases of the description above alluded to, in which the construction of an assignment by way of mortgage of personal property, and a bill of sale, were respectively considered, and in both those cases the court held, that after-acquired property did not pass under the instruments in question.

In the earliest of these cases, Tapfield v. Hillman, 6 Man. & G. 254, the plaintiff, who was an inn-keeper, in consideration of a loan of £200, assigned to the defendant "all and singular the household furniture, plate, linen, china, glass, brewing utensils, post-chaises, carriages, horses, flys, harness, stock in trade, goods, chattels, and effects of him the said J. Tapfield, in, upon, about, or belonging to all that inn, &c.; and also the tap, yard, stables, buildings, and premises adjoining or belonging thereto, as the same now are in the tenure or occupation of the said J. Tapfield," with a power of entry, containing an authority "to take possession, hold, and enjoy all and every the goods, chattels, effects, and premises," to and for the defendant's own absolute use and benefit; with a proviso, that until default was made in payment of the £200, or the interest, the plaintiff should hold and make use of the premises expressed to

A rule nisi having been obtained for a new trial, on the ground of misdirection, the defendant's counsel, in support of the rule, contended, that the situation of the parties and the nature of the property left it clear beyond doubt, that the parties must have intended that the deed should comprise the effects upon the premises from time to time: otherwise the security would be of little or no value. On the other hand, it was said in argument, that it was not clear an assignment could be made to comprise property not in existence at the time of the grant; but at all events that point did not arise here, as the deed by its terms did not profess to include property subsequently acquired, and the court would not look beyond the deed to guess at the intention of the parties.

The whole court agreed, that the learned judge put the proper construction on the deed at the trial, and that even if it had been quite certain that the parties intended the deed should embrace after-acquired property, that intention could not prevail, unless the deed contained words sufficient to carry the intention into effect. In the course of his judgment, Tindal, C. J., observed, that "it would have been very easy to have so

10

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 be enforced," a dictum which, we shall find, was afterwards questioned. There does not appear to have been any authority cited at either side, either in the argument or judgment.

The court took time to consider its judgment, which was afterwards pronounced by Tindal, C. J., who observed, that the question was not whether a deed might not be so framed as to give the 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,

execution of the deed. Perkins says, “it is a common learning in the law, that a man cannot grant or charge that which he hath not." The only point which the court seemed to think admitted of doubt, was, whether the facts of the case brought

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 should at any time thereafter remain and be, in, upon, or about his dwelling-house at Stoney Stratford, &c., and also all his other effects elsewhere." Under color of this assignment, the defendant afterwards entered upon the premises and it within the exception in Lord Bacon's seized certain goods then upon the premises, but which were not upon the premises, or in the plaintiff's possession, at the time of the execution of the deed, but were acquired by the plaintiff subsequently. An action of trover having been brought to recover the value of the afteracquired goods, the question for the court was, whether the bill of sale justified the seizure of those goods.

For the defendant it was contended, that the bill of sale covered all the goods of the grantor that might be upon the premises at the time of the seizure, whether there at the time of the execution of the bill of sale or not; whilst the plaintiff's counsel submitted that the bill of sale could not operate to convey to the defendant goods of which the grantor was not, at the time of executing it, actually or potentially in possession; and it was suggested, that the intimation of opinion thrown out by Tindal, C. J., in Tapfield v. Hillman, that the deed might have been framed so as to pass after-acquired property, was extra judicial, and not justified by any authority. The principal cases cited were Perk. tit. Grant, 65–90; Bac. Max. R. 14. Shep. Touch. tit. Grant, p.

The

rule, (Reg. 14)-"Licet dispositio de interesse futuro sit inutilis, tamen protest fieri declaratio precedens, quæ sortiatur effectum, intervenient novo actu." question, therefore, was, whether the bringing the goods which were the subject of the action on the premises after the execution of the bill of sale, was such a new act done by the plaintiff as gave the declaration in the bill of sale its effect. Lord Bacon's language was, “that there must be some new act or conveyance, to give life and vigor to the declaration precedent;" which pointed at some new act to be done by the grantor in furtherance of the original disposition, and not the simple acquisition of property at a subsequent time, which, if sufficient, would render the rule itself altogether inoperative. Now, the evidence in this case was silent as to the circumstances under which the goods were brought upon the premises, and the court could not say there had been any new act done by the grantor, indicating his intention that those goods should pass under the previous bill of sale. The court was therefore of opinion, that the property in the goods which were the subject of the action was in the plain

Practical Points.-Trade Marks-Injunction.

Practical 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 marks of distinction which might be discovered on comparison, but the ordinary run of persons would not on a casual inspection have been struck with any variance between them. The defendant, however, contended, that he had a clear right to affix his own name to his own manufacture, and that he had authority to add that of Martin. He moreover insisted, that the plaintiffs themselves were guilty of a deception, by representing their manufacture to be that of Day and Martin, who were respectively and had been for several years in their graves; there being in fact no persons so named in the establishment carried on by the plaintiffs. Lord Langdale, after remarking that what was proper to be done in cases of this kind, must more or less depend upon circumstances and specialties which accompanied them-held, that upon the whole, there was quite enough in the conduct of the defendant, and the colorable contrivances employed by him to mislead the bulk of the unwary public into the impression that the new establishment was either identified with, or was in some way connected with the more ancient firm or manufactory-and being of opinion that what had been done was calculated to effect that end, and thereby at once to benefit the defendant, 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

IN a recent English case that came before Lord Langdale, the master of the rolls, reported 6 Beav. 66, his lordship is reported to have inclined to the opinion that there can be no property in a trade mark; but he does not appear to have expressed himself very confidently on the point; and he suggested that it ought to be raised in an action to try the legal right. He however refused the injunction, on the ground that the plaintiff had himself practiced a deception upon the public, inasmuch as he had in his labels and cards described his own article (the Mexican Balm for the Hair) as having been made from an original receipt of the learned Von Blumenbach, whereas, in fact, its true inventor was quite a different person and one of no celebrity. Lord Langdale, in disposing of the case, said, he would follow the precedent made by the Vice Chancellor of England, in Pudding v. How, 8 Sim. 477, the well known Howqua Tea case, where, on the ground of a similar misrepresentation, it was held to be a clear and universal rule, that courts of equity ought not to extend their protection to parties whose cases are not founded in truth.

the