J. R. Purdy, the amount due upon The mere payment of a debt by a the judgment of foreclosure, together stranger operates as a satisfaction, with interest, costs, and the ex- but the rule is otherwise when the penses of vacating such sale; and creditor assigns the obligation to thereupon and therefore it was the payer. The consent of the debtor agreed to transfer the said judgment is not necessary to the validity of to the plaintiff herein, although the such an assignment, because the actual assignment was never made. property lies in the creditor, and he In September, 1871, the said J. R. may do with it as he wills. 1 Lea. Purdy executed and delivered a deed Cas. in Eq., 4 Am. Ed., 151, and of these premises to the plaintiff cases cited; Barnes v. Mott, 66 N.Y., herein, who, in exchange therefor, 397. In equity such parol agreeexecuted an agreement giving the ment concerning the assignment as said J. R. Purdy two years to re- was made herein, is equivalent to an deem the property. Upon the death actual assignment. The subsequent of the said J. R. Purdy, the defend- acts, whereby the mortgage was satant herein became administratrix. isfied, of record did not necessarily destroy the plaintiff's right to enforce the judgment. The mortgage, which was collateral to the debt, had become merged in the judgment, On the trial of this action the court found that the deed above mentioned was a mortgage, because the allegation of that fact in the complaint was admitted in the but a discharge thereof thereafter answer; that the deed and agree- did not discharge the debt. The ment to reconvey were intended as statement in the satisfaction piece an additional security for the pay- that the mortgage had been paid is ment of money on the old mortgage, not conclusive. If there were an of which the plaintiff was to have an usurious agreement, as is claimed, it assignment of and now owns in would not affect the debt representequity, and that J. R. Purdy is ed by the judgment assigned Patliable for any deficiency or the sale. terson v. Birdsall, 64 N. Y., 294. Thos. Nelson, for applt. But the question of usury is not Close & Robertson, for respt. before us. There is no finding Held, The evidence supports the thereupon, or no request to find fact to which the defendants except, therefor. An exception to the court's and which was not brought in issue failure to find is unavailing. To prein the first trial—that is, as to the sent the question to us there should existence of the agreement to assign be either a finding, together with a the mortgage. This being the fact, conclusion of law thereupon and an the conclusion of law follows, on the exception thereto, or a request to principle that equity regards that find thereupon and an exception to done which ought to be done, the a refusal so to find. Code Civ. payment was, in fact, a purchase of Proc., §§ 992 to 995; 3 Wait's Pr., the judgment, which carried incident 223. thereto plaintiff's right to subroga tion. Judgment appealed from is, for a small sum, too much. It is, therefore, modified in that respect. The true The defendant demurred to the inamount will be ascertained upon the dictment, upon the ground that the settlement of the judgment to be en- facts stated did not constitute a tered herein. crime. As modified, judgment affirmed, with costs. The court sustained the demurrer to the second count, holding that Opinion by Gilbert, J.; Pratt J., Alaska was not "the Indian coun concurs. ASSAULT WITH DANGEROUS U. S. CIRCUIT COURT-OREGON. The laws of the United Statee provide no pun- A loaded pistol is not only a dangerous but a deadly weapon, and this is a fact of which the court must take notice. try" within the purview of § 21 of the act of March 27, 1854, 10 Stat. of an assault by a white person 270, § 2142 R. S., defining the crime within such country with a deadly weapon with intent to kill. The demurrer to the first count was overruled pro forma, whereupon the defendant pleaded guilty thereto, and then moved in arrest of judgment for the cause stated in the de murrer. This count is based upon § 2 of the act of March 3, 1858, 11 Stat. 250; § 5342 R. S., which provides in effect that every person, who, within any place or district of country under the exclusive jurisdiction of the United States, or upon the high seas or other water within the admiralty jurisdiction thereof, and out of the jurisdiction of any particular state, attempts to commit The first one charges him with murder "by any means not consti"an attempt to commit the crime of tuting the offense of assault with a murder, by means not constituting dangerous weapon," shall be punan assault with a dangerous wea- ished, &c. On January 7, 1879, the grand jury for this district found an indictment against the defendant, containing two counts. pon," by willfully and maliciously 66 Held, The only provision in the punishing an attempt to commit murder or manslaughter on land, is found in § 5342, but for some reason this is confined to cases where the means used do not constitute "the offense of assault with a dangerous. weapon." shooting one Edward Robert Roy," statutes of the United States for on October 8, 1879, with a loaded pistol, with intent to him murder, at Sitka, in the territory of Alaska. The second one charges him with an assault upon said Roy at the time and place aforesaid, with a loaded pistol, with intent him to kill, and alleges that said territory of Alaska The punishment of an assault with was then and there Indian territory. a dangerous weapon, or with intent to perpetrate a felony, committed the manner and circumstances of its on the waters within the jurisdiction use, the question becomes one of of the United States, and out of the law and fact, to be determined by jurisdiction of any particular State, the jury, under the direction of the was provided for in § 4 of the act of court. But where it is practicable March 3, 1825, 4 Stat. 115, § 5346 for the court to declare a particular R. S., but not the attempt to com- weapon dangerous or not, it is its mit murder or manslaughter, unless duty to do so. A dangerous weapon it was coincident with such assault. is one likely to produce death or But an attempt to commit murder great bodily harm. A loaded pistol or manslaughter on land, or an as- is not only a dangerous but a deadly sault there, by whatever means com- weapon. The prime purpose of its mitted, was not punishable by any law of the United States until 1857, when, as has been stated by § 2 of the act of March 3, of that year, it was declared that an attempt to commit murder or manslaughter, whether on land or water, should be punished as therein prescribed, provided such attempt was not made by means of the assault mentioned in the act of 1825, supra, thus limiting the operation of the statute to attempts made by drowning, poisoning, or the like. And probably this was so provided, upon the erroneous impression that the act of 1825 was applicable to assaults committed on land as well as water. But however this may be, as a result of this patchwork legislation, it construction and use is to endanger and destroy life. This is a fact of such general notoriety that the court must take notice of it. 2 Curt., 242; 1 Bald., 99. It appears, then, from the indictment, notwithstanding the averment therein to the contrary, that the act alleged to be an attempt to commit murder was an assault with a dangerous weapon, and therefore not punishable by the statute. Motion granted and defendant discharged. Opinion by Deady, J. STOLEN PROPERTY IN HANDS GENERAL appears that there is no punishment N. Y. SUPREME COURT. TERM. SECOND DEPT. Collins, respt., v. Stephen A. Ralli et al., applts. Whether a particular weapon is a deadly or dangerous one, is generally a question of law. Sometimes, owing to the equivocal character of the instrument—as a belaying pin-or Decided December, 1879. C. & Co., cotton brokers, obtained certain parcels of cotton from the plaintiff on behalf of certain out-of-town manufacturing companies, whose brokers they claimed to be. In pursuance with the usage in such cases, which is that the dealer allows the broker to credit the goods for shipment to his principal, C. & Co. removed this cotton after it had been bagged and addressed to their al- C., pp. 681-93. The determination leged principals, but afterwards stored it and of larceny is important only upon the question of estoppel. 45 N. Y., 391. took a warehouse receipt, which C. & Co. sold to defendants, who were innocent pur chasers for value. Plaintiff, on ascertaining these facts, demanded his cotton from de In any circumstance C. & Co. fendants, who refused to deliver the same, could convey no title even to bona. whereupon this action was brought. Held, fide purchasers for value, unless That C. & Co. could convey no title to said by the apparent ownership or power of C. & Co. over the same, and since the circum cotton to the defendants unless the plaintiff plaintiff's committed or omitted some committed or omitted some act in respect to act in respect to them, whereby the them, whereby said purchaser was, or a pru- defendant was, and a prudent third dent third person would be, naturally misled | led by some apparent ownership person would be, naturally misor power by C. & Co., or their representatives, in and over the same, created by such omission or commission. In such a case, estoppel might be invoked by the defendants. 46 N. Y., 329. The plaintiff's acts stances attendant on the transactions were but the usual means adopted to put brokers in possession for the sole purpose of transmis sion to their principals, there was no such commission or omission on the part of the plaintiffs as would work an estoppel, since the power given to C. & Co. was no evidence of their title whatever. That, as the evidence showed a conversion by defendants by a sale two months previous to this action, no demand by plaintiff of defend ants was necessary. The failure of the defendants to inform the plaintiff of their uncertainty, subsequently alleged, as to what specific property was de manded, is a waiver of any defects in said were not those of such commission or omission. He simply followed the usage of the trade, in dealing with brokers, to put them in temporary possession for shipment to their principals, for whom they made the pretended purchase. The purpose of plaintiff's orders was served when they were delivered to the wareAppeal from judgment confirming houseman, who held cotton for the report of referee made in favor of plaintiff, and he obeyed them. This the plaintiff and against the defend-is no indication of title in defendant. 2 H. L. Cas., 309; 75 N. Y., 547. The facts are recited in the first Bare possession of chattels is not paragraph of the head-note. demand in that respect. ants. Ely & Smith, for respts. sufficient to entitle one to convey title. 40 N. Y., 330; 46 id., 329; 74 id., 568; 74 id., 587; 67 id., 322; 20 Wend., 267; 2 T. R., 62. Higgins v. Burton, 26 L. T., N. S., 342, Ex., is Held, The possession of C. & Co. being temporary and for a specific purpose, and the undisputed evi- identical with the case at bar, and dence showing that their procure- the cases of Hardman v. Booth, 1 ment of such possession was fraud- H. & C., 803; 7 L. T. Rep., N. S., ulent, with an eye to a conversion 638; Condy v. Lindsay, 38 L. T. R., by them, their acts amounted to a N. S., 573, and Barker v. Densmore, larceny. 67 N. Y., 322; 2 R. S., § 72 Tenn., 427, are similar cases. 63, p. 679; 53 N. Y., 113; 45 N. Y., 391; 6 Abb. N. C., 413; 2 East's P. The distinction is made between the case at bar and a sale procured by false pretenses. Here there was demanded. If the defendants had no sale made, and the title remained any misgivings as to the subject of in plaintiff. See Lord Chancellor the demand, it was their duty to inCairns' opinion in Condy v. Liud- form plaintiff, and their omission to say, supra.; 53 N. Y., 111, and also do so is a waiver of any such defect supra, 6 Abb., N. C., 413. Craig v. in said demand. As it appeared Marsh, 2 Daly, the only case in con- that the defendants had converted flict with these views, seems to have the cotton through a sale made two been decided without remark of this months previous to this action, no distinction above mentioned, and its demand was necessary. 71 N. Y., doctrine therefore is not approved. 353; 61 N. Y., 477; 28 Wend., 462. All the parties to the action are innocent of fault, and it is simply the duty of the court to see to it that the loss falls where the law casts it. Judgment confirming report of referee affirmed, with costs. Opinion by Pratt, J. Sec. 6, ch. 326, of the Laws of 1858, when speaking of the effect of "warehouse receipts," means such as are given for goods so stored or deposited by any person having the title thereto, real or apparent, or authority from such person therefor. Any other construction would enable warehousemen to issue receipts for goods known by them to have been stolen, and thus convey title to them without any remedy remaining N. over to the plundered owner. MARINE INSURANCE. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Philip H. Reed et al. v. The Lan Ch. 179 of the Laws of 1830 is analagous, and has been construed caster Fire Ins. Co. of Lancaster, by the Court of Appeals in conformity to the above interpretation of ch. 326 of the Laws of 1858. 71 N. Y,. 387. See 60 N. Y., 40; id. 73, 61 N, Y., 283; 74 N. Y., 568; 4 Den., 323; 2 Seld., 374, and the precise question here presented was decided in First Nat. Bk. of Toledo v. Shaw et al., 61 N. Y., 283. In Yenni v. McNamee, 45 N. Y., 619, the receipt was held not to be a warehouse receipt under the meaning of the statute. In McCombie v. Spader, 1 Hun, the goods were sold to the person putting them in store, although the sale was fraudulent. The evidence shows the demand made before, suit was definite and sufficient to identify the chattels Pa. Decided December, 1879. "while plying Jamaica Bay, and the bay and har bor of New York," or while lying at anchor at any bulkhead, dock, or pier. Some months before the loss, the vessel was intentionally driven on a beach by steam, head on, at high tide, a cable was stretched from the bow to a piece of iron buried in the beach, and another from the stern was attached to an anchor. Held, That a vessel so beached cannot be said to be lying at anchor within the meaning of the policy. The policy provided that if the “premises” should be vacated and remain unoccupied for twenty days, or the risk increased by a change of occupation or otherwise within the control of the assured, the policy should be of no effect, unless immediate notice should be given the company and its assent signified on the policy. The vessel was unoccupied |