« ForrigeFortsett »
only term subject to any appearance of ambiguity authority; but when, on the second trial, it apor indefiniteness, was the direction to sell. But I peared that, within his authority, he had chosen think that also is sufficiently definite in the law to to transfer by indorsement, the liability legally relieve the present inquiry from difficulty. A sale incident thereto attached to his principals. A reof a chattel is a transfer of its title by the vendor mark of Ashhurst, J., in the case just cited, and to the vendee for a price paid or promised. 1 two cases tried before Lord Ellenborough, have Parsons on Contracts, 519. A direction to sell, given rise to some decisions and more numerous therefore, nothing more appearing, would confer dicta in opposition to the views above expressed. upon a special agent no authority beyond that of Ashhurst, J., said, in illustration of the difference agreeing with the purchaser in regard to these between a general and a particular agent, “I take component particulars. Under certain circum- the distinction to be that if a person keeping livery stances a sale legally imports more than these stables, and having a horse to sell, directed his particulars, and in such cases the authority under servant not to warrant him, and the servant did, a power to sell would be correspondingly en- nevertheless, warrant him, still the master would larged. Thus, if a sale be made by sample, it is be liable on the warranty, because the servant thereby impliedly warranted that the bulk is of as was acting within the general scope of his authorgood quality as the sample. Hence it has been ity, and the public can not be supposed to be properiy held that where a broker was empower- cognizant of any private conversation between ed to sell goods which were in bulk, and, by the the master and servant; but if the owner of a custom of brokers, it was permissible to sell such horse were to send a stranger to a fair, with exgoods by sample, and he was not restricted by his press directions not to warrant the horse, and the instructions as to the mode of sale, his sale by latter acted contrary to the orders, the purchaser sample, and the warranty of quality therein im- could only have recourse to the person who actiplied, were binding upon his principal. The Monte ally sold the horse, and the owner would not be Allegre, 9 Wheat. 616; Andrews v. Kneeland, 6 liable on the warranty, because the servänt was Cow. 354; Schuchardt v. Allens, 1 Wall. 354. not acting within the scope of his employment."
But in a sale of a horse, subject to the buyer's This remark lends some countenance to the idea inspection, no warranty of quality is implied, and which, however, it does not directly assert, that it seems a short and clear deduction of reasoning an authority to sell, given even to a particular thence to conclude that in an authority to make such agent embraces an authority to warrant in the a sale, no authority so to warrant is implied. The absence of an express exclusion. warranty is outside of the sale, and he who is em- In Helyear v. Hawke, 5 Esp. 72, (1803), Lord: powered to make the warranty must have some oth- Ellenborough said, “I think the master having er power than that to sell. Accordingly, in Brady intrusted the servant to sell, he is intrusted to do v. Todd, 9 C. B. (N. S.) 592, the court directly de- all he can to effectuate the sale, and if he does cided that the servant of a private owner, intrust- exceed bis authority in so doing, he binds his ed by his master to sell and deliver a horse on one master.” As no warranty was shown in this occasion, is not, by law, authorized to bind his case, it did not become necessary to apply the employer by a warranty of quality, but, to do so, doctrine thus announced. In Alexander v. Gibauthority in fact must be shown. The significant son, 2 Camp. 555, (1811.) the same learned chief circumstances of that case were precisely like justice declared that if the servant was authorized those in this, and Chief Justice Erle points out to sell the horse, and to receive the stipulated the soundness, both in law and policy, of the rule price, he thought he was incidentally authorized there applied.
to give a warranty of soundness; that it was most The case of Fenn v. Harrison, 3 T. R. 757, usual, on the sale of horses, to require a warranty, (1790), which is a leading case, illustrates the and the agent who is employed to sell, when he true principle. There the defendants directed H warrants the horse, may fairly be presumed to be to take a negotiable bill of exchange to market and acting within the scope of his authority. In get cash for it, but stated that they would not in- this case the plaintiff called the servant as a witdorse it. It was held that H could not make a con- ness, who swore that he was expressly forbidden tract to bind the defendants to pay the bill. On a by his master to warrant the horse, and there second trial, (S. C. 4 T. R. 177,) it appeared that was no other evidence as to his authority, yet, the only direction to Hwas to get the bill dis- because the warranty by the servant was proved, counted, and upon this the court decided that H. the plaintiff recovered on the warranty against could bind the defendants by indorsement. The
the master. purpose of the defendants, in both cases, was to For these dicta and decisions no authority is authorize a transfer of the bill; the law recog- cited. Chief Justice Erle says, in Brady v. Todd, nized two methods of doing this—one by mere ubi supra, that he understands these judges to redelivery, the other by indorseinent. The instruc- fer to a general agent employed for a principal to tion to get the bill discounted,” or “to get cash carry on his business of horse dealing. Certainly for that bill," was broad enough to include both if the ruling in Alexander v. Gibson had regard to methods of transfer, but the limitation shown on a particular agent, it has not been followed to the first trial, that the defendants would not in- the extent to which it was there carried. No dorse the bill,” necessarily contined the agents to other case holds that such an agent could bind his the transfer by delivery. On both trials the court principal by a warranty expressly interdicted. bounded the power of the agent by his express But to the extent of holding that a special agent
might warrant if not forbidden, these observations his express authority, and is in opposition to wellhave formed the foundation of some judicial as- considered and authoritative decisions. For exsertions and adjudications.
ample, it might very much facilitate the sale if The earliest case I find in this country is Lane the agent could indorse the vendee's note for the v. Dudley, 2 Murph. 119, (1812,) where Taylor, purpose of raising the money to pay the price, Chief Justice, citing the substance of Ashhurst's
and such an exercise of power would jeopardise illustration, says an authority to warrant a horse the principal no more than would a sale on credit, is within the scope of an authority to sell. The and very much less than might a warranty of decision itself turned a ratification. In quality; and yet I imagine that a special agent Skinner Gunn, 9 Port.
(1839) could not make such an indorsement binding on it is said, “an agent employed to sell
his employer, for in Gulick v. Grover, 4 Vroom, horse may warrant him to be sound, that
463, the Court of Errors held that even a general being usually done in such cases." The suit was
agent had no authority so to indorse, to enable his on the warranty of a slave, but failed for want of principal's debtor to borrow money to pay the proof. Fenn v. Harrison, Helyear v. Hawke and
debt. So in Upton v. Suffolk County Mills, 11 Alexander v. Gibson, ubi supra, are the only cases
Cush. 586, it was adjudged that even a general agent cited. Following this are Gaines v. McKinley,
for the sale of tlour could not warrant that it would 1 Ala. 446, and Cocke v. Campbell, 13 Ala. 286,
keep good during a voyage to California. And on warranty of soundness of slaves, and Bradford in Bryant v. Moore, 26 Vt. 84, a warranty of oxen v. Bush, 10 Ala. 386, on warranty of the age of a
by a special agent empowered to exchange, was horse. In Ezell v. Franklin, 2 Sneed, 236, it was
held invalid against the principal. Likewise, in held that authority to sell a slave gave authority
Lipscomb v. Kitrell, 11 Humph. 256, it was decidto warrant soundness, citing Fenn v. Harrison,
ed that an authority to sell a claim confers no aubut no case of special agency; and in Tice v. Gal
thority to guarantee it—that such a guaranty is lup, 2 Hun, 446, it was decided that a special agent,
not a necessary incident of the sale; and a similar authorized to sell a horse, might warrant its age
conclusion was reached as to bank stock, in Smith and the cause of its apparant lameness, by virtue
v. Tracy, 36 N. Y. 79. of his agency to sell, unless forbidden to so do by Undoubtedly there are many cases where it has his principal. The only case cited for this posi- been held that a general agent to sell might wartion is Nelson v. Cowing, 6 Hill, 336, which, how- rant quality. A general agent, Mr. Russell, in his ever, supports it by a dictum only.
treatise on Factors and Brokers, p. 75, defines to be These are the only cases I have found wherein
either, first, a person who is appointed by the it has been decided that an authority to a special
principal to transact all his business of a particuagent to sell, embraces an authority to warrant
lar kind; or, secondly, an agent who is quality. Resting, as they all do, either directly
himself engaged in a particular trade or busior indirectly, on Fenn v. Harrison, Helyear v.
ness, and who is employed by his princiHawke and Alexander v. Gibson, they no longer pal to do certain acts for him in the course have any foundation on authority, since these three
of that trade or business. Such agencies extend, cases, if they ever applied to a special agency, are
it is said, to whatever is fairly included among the now, in that respect, distinctly overruled by Brady dealings of that branch of business in which the v. Todd, ubi supra; a decision foreshadowed by agent is employed. But their scope arises not out Creswell, J., when, in Coleman v. Riches, 16 C. B. of the instructions given, but out of those implied 104, 113 (1855), he asked counsel, citing 2 Camp. powers which the law confers, even in spite of in555, “would you hold that to be good law at the
structions, because of which these are often called present day?" and clearly approved as correct in implied agencies in contra-distinction from special principle in Udell v. Atherton, 7 H. & N. 170.
agencies which are express. Thus, in Howard v. Nor have they any better basis on principle than
Sheward, L. R. 2 C. P. 148, an agent of a horseon authority. Their underlying principle is said
dealer bound his master to a warranty of the qualto be that the agent, being empowered to sell, is ity of a horse sold, although directed not to warintrusted with all powers proper for effectuating
rant. Other cases of warranty of quality by a the sale, and a warranty of quality is both a prop
general agent are Hunter V. Jameson, 6 Ired. er and a usual power for that purpose. If by this
252; Woodford v. McClenahan, 9 Ill. 85; Milburn were meant that the agent is intrusted with all
v. Belloni, 34 Barb. 607; Nelson v. Cowing, 6 Hill, powers proper to the making of an effectual sale, 336. But it is utterly inadmissible to deduce from its accuracy could not be questioned. Undoubt- these instances of general agency the existence of edly his authority extends to whatever is proper to similar powers in special agents, between whom be done in fixing the price, and the time and mode and general agents Dr. Story says it is very imof payment, and the time and mode of vesting portant carefully to discriminate. Story ou Agenthe title and delivering the chattel. All these things are incident to the sale. But if the ex- Nor do I see the propriety of asserting, as a pression means that the agent is intrusted with matter of law, that a warranty of quality is a all powers convenient for the purpose of inducing usual means of effecting the sale of a chattel by a the purchaser to buy, even to the extent of ena- private person, i. e., one not a tradesman in the bling him to make collateral contracts to that end, line of the sale, or that it is even a usual attendthen I think it is in violation of the settled rule ant upon such a sale. Such warranties may be as that the special agent must be confined strictly to
various as the qualities of the objects sold, and to
cy, $ 21.
The cause may be remitted to the Common Pleas for a new trial.
NOTES OF RECENT DECISIONS.
determine, as by a rule of law, which are usual and which not, will involve the courts in discussions where the personal experience of judges must have more influence than legal principles. In every such case the question of usage should be regarded as one of fact and not of law.
Sometimes it has been intimated that a distinction might be based upon whether the warranty by the agent were set up by a plaintiff to maintain a suit against the principal, or by a defendant to resist the principal's suit for the price, and that the attempt of the principal to collect the price, after he has learned of the warranty, is a ratification of it. On the idea that the authority does not cover the warranty, and that the purchaser is chargeable with knowledge of the authority, it is not plain how he can withstand the vendor's claim on a contract made, by alleging a contract which he knew was not made. But if there be anything at all in the distinction, it must be confined to those cases where, when the principal obtains, knowledge of his agent's unauthorized warranty the sale is in fieri, or can be declared void and the parties restored to their original position. What the principal does in pursuance of a bargain which he has authorized his agent to make, without knowledge that his agent has entered into an unwarranted contract, is not a ratification of such contract. Combs v. Scott, 12 Allen, 493; Smith v. Tracy, 36 N. Y. 79; Titus v. Phillips, 3 C. E. Green, 541; Gulick v. Grover, 4 Vroom. 463. And if, when he acquires knowledge, he can not, in justice to himself, disavow the whole of his agent's contracts, he is entitled to stand upon what he authorized, and repudiate the rest; the purchasers who dealt with a special agent without noting the bounds of his power, must suffer rather than the innocent principal. Bryant v. Moore, 26 Me. 84.
These views are not at all in conflict with the class of cases which hold that the principal is responsible for the fraud or deceit of his agent, committed in the course of his employment for his employer's benefit. Jeffrey v. Bigelow, 13 Wend. 518; Sandford v. Handy, 23 Wend. 260; Barwick v. Eng. Joint Stock Bank, L. R. 2 Ex. 259; Mackay v. Com. Bank of N. Brunswick, L. R. 5 P. C. 391. Those cases are well founded upon the principle that, as every man is bound to be honest in his dealings with others, so is he bound to employ honest agents, whether they be general or special, and if in transacting his business, and within the range of their authority, they be dishonest, the consequences are legally chargeable to the employer, and not to a stranger.
Hern v. Nichols, 1 Salk. 289.
In the present suit I think that the unauthorized warranty, inferred from the honest statement of the agent that the horse was all right, not communicated to the vendor or his representatives until after the horse was delivered to and had died in the possession of the vendee, formed no defense to the claim for the price, and that the appellee's prayer for instructions to the jury was justified by the facts and the law, and should have been granted. Its refusal was error, for which the julgrii at should be reversed, with costs.
CONSTITUTIONAL LAW-DISCRIMINATION IN STATE PROCEDURE AGAINST NON-RESIDENTS. – The code of Nebraska provides that an attachment may be issued against a non-resident of the State without the undertaking which is required in the case of a resident. Held, that the provision is not in conflict with the requirement of the Federal Constitution ($ 2, art, 4), that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.-Marsh v. Steele. Supreme Court of Nebraska. Opinion by MAXWELL, C. J. 20 Alb. L. J. 290.
CONFLICT OF LAWS PROMISSORY NOTES GoyERNED BY THE LAW OF PLACE WHERE MADE AND PAYABLE.-A promissory note made by defendant as accommodation maker in New York and payable in that State, was discounted for the payee in Massachusetts at a rate lawful there but usurious in New York. Held, that the contract was governed by the law of New York, and the note was invalid for usury. Jewell v. Wright, 30 N. Y. 259, approved; Bowen v. Bradley, 9 Abb. Pr. (N. S.) 393, disapproved.-Dickinson v. Edwards. New York Court of Appeals. Opinion by FOLGER, J. 20 Alb. L. J. 310.
EXECUTION SEAT IN THE BOARD OF BROKERS. NOT SUBJECT TO.-By the constitution of the Philadelphia Stock Exchange, it was provided that membership might be sold, with the consent of the exchange, and the balance of the proceeds, after satisfying the owner's debts to members, was to be paid to the owner. Heid, that such meinbership in the exchange is not property subject to execution in any form, but that it is a mere personal privilege or license to buy and sell at the meeting of the board, It can not be levied on and sold under a fi. fa. or attachment execution.- Pancoast v. Goven. Supreme Court of Pennsylvania. Opinion Per CURIAM. 7W. N. 457.
SALES – CONCURRENCE OF DELIVERY AND PAYMENT.- Plaintiff sold defendant certain tobacco in three lots at three different prices, to be delivered on plaintiff's premises, but to be taken to the railroad depot by plaintiff free of charge. Plaintiff, assisted by defendant, packed two lots of the tobacco, and defendant went away, after directing plaintiff to pack the other lot. The tobacco so packed was forwarded to defendant and duly received, and defendant paid part of the purchase-money. Plaintiff packed the third lot as directed and made it ready for delivery on his premises, and requested payment, which defendant refused, insisting that the tobacco was to be delivered at the depot, and paid for there. Plaintiff, in the exercise of reasonable diligence, afterwards sold the third lot for its full value, but for less than defendant had agreed to pay for it. Held, that as plaintiff was required only to be ready to deliver the tobacco at the time and place agreed on, and as he had done that, and as defendant had neither paid nor offered to pay, defendant had broken the contract; that the contract was entire; that plaintiff had a right to re-sell the tobacco, and might recover of defendant the difference between the most that he could get on re-sale and the agreed price, and in addition, the unpaid balance of the agreed price of what was delivered, and that as the cause was referred and the damages sought to be recovered such as might have been recovered on dec
which the parties had treated the claim that he did, and that as he ordered the second lot and had acknowledged his liability to pay for both lots, he was proper. ly made defendant in assumpsit to recover for both lots. 2. Goods ordered of a manufacturer for a particular purpose, are impliedly warranted fit for that purpose. But the manufacturer is not bound to furnish the best goods of the kind that are or can be made, but only such as are usually made and usedsuch as are reasonably fit for the purpose. Thus, where it appeared that gas-meters furnished by man. ufacturers on a general order worked as accurately and well and lasted as long as the meters of other reputable makers, but did not work as accurately and well, nor last as long as the meters of certain English, and perhaps certain other American, makers, it was held, that the meters were of the kind and quality required by the order.-Harris v. Waite. Supreme Court of Vermont. Opinion by ROYCE, J. Advance sheets of 51 Vt.
SOME RECENT FOREIGN DECISIONS.
laration such as the court might have allowed in amendment of a declaration in common counts in assumpsit, plaintiff might recover on such count. Phelps v. Hubbard. Supreme Court of Vermont, Opinion by Dunton, J. Advance sheets of 51 Vt.
LUNATIC ACCOMMODATION INDORSER — INQUISITION AFTER DATE OF INDORSEMENT BONA FIDE HOLDER.- An accommodation indorser of a promissory note, given in renewal of a note for a similar amount indorsed by him while of sound mind, who was found by inquisition to have been a lunatic at the time of indorsement of the renewal note, is liable to a bona fide holder who received the note before the inquisition and without notice of the indorser's lunacy. Lancaster County Bank v. Moore, 28 Sm. 407, and Moore v. Lancaster Nat. Bank, 2 W. N. 674, followed. -Snyder v. Laubach. Supreme Court of Pennsylvania. Opinion Per CURIAM. 7 W. N. 464.
FIRE INSURANCE-INCREASE OF RISK-SET-OFF IN DIMINUTION OF Risk.-1. Neglect or omission to mention, at the time of application for a policy of insurance, the existence of a carpenter shop in close proximity to the building insured, and the subsequent erection of a new building adjoining the house insured, without notice to the company, is such an increase of risk as will vitiate a policy of insurance containing the following conditions: “The insured hereby coyenants that the representations given in the application for this insurance is a warranty on the part of the insured, and contains a just, full, and true exposition of all the facts and circumstances in regard to condition, situation, value, and risk of the property;' and further, that “if, after insurance, the risk shall be increased by any means whatsoever
* and the assured shall neglect to notify the company of said increased risk, such insurance shall be void.” 2. Setoff in diminution of risk by removal of a building warranted in the application for insurance not to be on the premises on which the insured dwelling stood, is inadmissible against the defense of increase of risk, in violation of the covenants of the policy, by the erection of a new building on an adjoining lot of which the insurance company had no notice.- Pottsville Mut. Ins. Co. v. Horan. Supreme Court of Pennsylvania. Opinion by TRUNKEY, J. 7W. N. 461.
SALES-IMPLIED WARRANTY OF THE FITNESS OF Goods FOR PURPOSE FOR WHICH THEY ARE BOUGHT.-1. Defendant was the sole stockholder and officer of an incorporated gas company. Plaintiffs, who were makers of gas-meters, shipped and billed to said company a lot of meters, which defendant received and used. Several months afterward defendant wrote plaintiffs that he had taken out three of the meters, and that they refused to pass gas. Plaintiffs replied that they could not account for it, unless the valves were stuck by impurities or other cause, but that if defendant would send the meters back they would repair and return them at their own expense, if they were in fault. Defendant thereupon, by personal letter, ordered of plaintiffs another lot of meters, and wrote them that they could draw on him for the amount of the first bill. The plaintiffs in like manner shipped and billed the meters so ordered to said company, and they were received and used by defendant. A long correspondence ensued in regard to the meters and payment therefor, wherein defendant wrote. “I will remit for your bill very soon,” and again, that he proposed to settle the account, and would have done so before, but could not fix in bis mind what he ought to do; that he thought he was entitled to some allowance for the imperfect working of meters. Held, that although it did not appear that defendant ordered the first lot, it was to be presuined from the way in
PERSONAL INJURIES ACTION MAINTAINABLE WITHOUT PROOF OF PERMANENT INJURY. – 1. In an action for damages for personal injuries, when the defendant on the pleadings admits negligence, in order to entitle the plaintiff to recover it is not necessary that he should prove that he sustained substantial injury. 2. If a railway company contract to carry A from B to C upon their line of railway, and before the train in which A is traveling reaches C, an accident happens to the train, by reason of the railway company's negligence, and if in consequence A is thrown out of the carriage in which he was traveling, he is entitled to recover damages against the company, whether he sustained any permanent injury or not.-Phil. pot v, Cork, c. R. Co. Irish High Court, Ex. Div. Ir. L. T. Rep. 155.
EASEMENT -LIGHT-- AGREEMENT-VENDOR AND PURCHASER CONSTRUCTIVE NOTICE. – The mere fact of a purchaser of a plot of land seeing a window in an adjoining tenement facing such land is not sufficient to give him constructive notice of an agreement between his vendor and the owner of the tenement that such window should have an indefeasi. ble right to the access of light, the purchase having been completed without any actual notice of such agreement. Decision of Hall, V. C., reversed. Dicta of Lord Chelmsford, in Miles v. Tobin, 16 W. R. 465, disapproved. — Allen v. Seckham. English High Court, Chy. Div., 28 W.R. 26.
RECEIVER-APPLICATION FOR PAYMENT OUT OF MONEYS RECEIVED BY HIM BY A JUDGMENT-CREDITOR NOT A PARTY TO THE ACTION.-Where a judg. ment-creditor of a railway company applied for an order for payment of the sums due under the judgment out of moneys in the hands of a receiver, the receiver having been appointed in a debenture-holder's action against the company, to which action the judgmentcreditor was not a party: held, that the judgment. creditor, not being a party to the action had no locus standi to apply for payment out of the moneys in the receiver's hands. Neate v. Pink, 3 Macn. & G. 476, considered.- Brocklebank v. East London R. Co. English High Court, Chy. Div. 28 W. R. 30.
MARINE INSURANCE---PARTIAL Loss-COST OF REPAIR – SALVAGE - SUING AND LABORING CLAUSE.1. The doctrine that a policy of marine insurance is a contract of indemnity is subject to some qualifications. 2. A ship which was insured for £1,200, and valued at
£2,600, was damaged by perils of the sea, and the owner became liable to the payment of £519 for salvage. The owner elected to repair the ship, which thus became more valuable than it was at the date of the insurance. Held (affirming the judgment of the court of appeal, reported 26 W. R. 780, L. R. 3 Q. B. D. 558), that the owner was entitled to recover the cost of repair, less the usual reduction of one-third new for old, up to the amount insured, even though he would have recovered less in the event of a total loss; but (reversing the judgment of the Court of Appeal, and restoring the judgment of the Queen's Bench Division, reported in 26 W. R. 42, L. R. 2 Q. B. D. 501), that no portion of the salvage expenses were recoverable under the suing and laboring clause contained in the policy. Kidston v. Einpire Marine Insurance Co., 15 W. R. 769, L. R. 2 C. P. 357. distinguished.-Atchison v. Loher. English House of Lords, 28 W. R. 1.
MARRIED WOMAN'S CHOSE IN ACTION - PUCTION INTO POSSESSION GIFT BY HUSBA TO WIFE.-The executors of a will, under which a married woman was entitled to a legacy, paid the legacy by a check for the amount, drawn to the order of the husband and wife. They went to the husband's bankers with the check, duly indorsed, and the wife handed it to the manager, and instructed him, in the husband's presence and with his assent, to open an account in her own sole name, and to place part of the proceeds of the check to the credit of such account, and the remainder to the husband's current account. These instructions were carried into effect, and the wife drew checks on the account from time to time in her own name, in several instances in favor of the husband, who never interfered with the account. The bankers invested a part of the sum in the purchase of certain bonds, and they sent her a memorandum by which they stated that they held the bonds as her property. The wife afterwards declined to accede to a request by her husband to charge her moneys and securities with the payment of the overdrawn balance of his account with the bankers, and the husband went into liquidation. Held, that the husband had not reduced the legacy into possession. Semble, that if it had been held that the husband had reduced the legacy into possession, it would have been held that there had been a valid gift of the amount by the husband to the wife.- Parker v. Lechmere. English High Court, Chy. Div., 28 W. R. 48.
and approved by the clerk, and the recognizanco entered of record.” Section 3298 is as follows: “Every recognizance taken as above provided, shall have the effect of a judgment confessed from the date thereof, against the property of the sureties.” Where a stay bond was approved and filed by the clerk, but was not copied into the records of the court: Held, that it was not “entered of record”' as contemplated by the above provisions, and did not constitute a lien upon the lands of the surety as against subsequent incumbrancers in good faith and without notice. Opinion by BECK, C. J.-Waldron v. Dickerson.
RECEIVER—JUDGMENT AGAINST, NOT A LIEN UPON PROPERTY AFTER SALE.-During the pendency of foreclosure proceedings against a railroad, the property was placed in the hands of a receiver, and while under his management the plaintiff, an employee, received injuries for which he recovered a judgment against the receiver. Before the rendition of the judgment, however, and while plaintiff's action was pending, the road was sold under the foreclosure decree and the receiver made his final settlement and was discharged. In an action to enforce plaintiff's judgment against the road: Held, that while the receiver might properly have paid it if rendered before his discharge, no lien could attach to the property while in the custody of the court, and the purchaser took the same free from any claim against the receiver. B. C. R. & N. R. Co. v. Verry, 48 Iowa, 458, 7 Cent. L. J. 65. Opinion by ROTHROCK, J.-White v. Keokuk, etc. R. Co.
NATIONAL BANKS WHEN USURIOUS INTEREST IS RESERVED- JURISDICTION OF STATE COURTS.Where a national bank loans money upon a usurious contract, such penalties and only such can be enforced as are provided in the national banking act. Farmer's & Mechanic's Nat. Bank v. Dearing, 1 Otto, 29. This being the law, and conceding it to be true in a certain sense that the penal statutes of any sovereignty can be enforced only by the courts which belong to that sovereigety, yet where a borrower of money from a national bank at a rate of interest which is usurious is sued by the bank in a State court to recover such interest, he may maintain the plea of usury in the same court. The plaintiff's statement that it is entitled to recover certain interest is not true, and it would be strange if, in an action to enforce a claim which is not valid. the defendant could not be allowed to resist the claim. It is a civil right to make such resistance, and the defendant must be allowed the right in whatever forum the claim is asserted, even though its enforcement would operate in some sense as a penalty upon the plaintiff, Hade v. McVay, 31 Ohio, 231; Ordway, v. Cent. Nat. Bank, 47 Md. 217; Betz v. Columbia Nat. Bank of Pa., 87 Pa. St. Opinion by ADAMS, J.-Nat. Bank of Winterset v. Eyre.
SUPREME COURT OF KANSAS.
July Term, 1879.
[Filed Nov. 15, 1879.]
REMOVAL OF CAUSE TO FEDERAL COURT CAN ONLY BE MADE WHERE THERE IS A CONTROVERSY. -Under the act of March 3, 1875, providing for removals from State to Federal courts in suits of a civil nature in which there shall be a controversy between citizens of different States," an order for a removal can not be made upon the application of a defendant who has neither answered nor demurred to the petition of plaintiff. The statute contemplates a controversy in a suit and not a suit to which there is no defense. Opinion by ROTHROCK, J.-Stanbrough 0. Griffin.
STAY OF EXECUTION When not ENTERED OF RECORD-LIEN.--Section 3295 of the code provides that “the surety for stay of execution may be taken
SCHOOL Tax.-1. Section 4 of ch. 149 of the Laws of 1879, p. 270, works by implication a repeal of all prior enactments providing for the levy of a one mill tax for the State annual school fund. Said section is not invalid by reason of conflict with sec. 16 of art. 2 of the State Constitution. Judgment for defendant. Opinion by BREWER, J. All the justices concurring. - State v. Ewing.
PRACTICE- MOTION FOR A NEW TRIAL. Where an action has been tried in a justice's court by a jury,