ways of ascertaining the value of Defendants to proceed at once to make certain property, one of them must rails, and give as much attention to them be resorted to before an action for the as to any other rails manufactured by value can be maintained.

them. The plaintiffs were the owners of a On the same day the last mentioned patent for the manufacture of a rail for contract was made, another was also use on railroads, known as Booth's Patent entered into, in which it was recited that Duplex Safety Steel and Iron Rail, and in plaintiff did thereby sell and grant unto June, 1869, they entered into an agree- the defendants the right, license, and ment, in writing, with defendants, in and privilege to manufacture said rails in the by which plaintiffs agreed to give to the states in said former contract mentioned, defendant full license to manufacture paying the royalty aforesaid. said rail in certain states, such license to The breaches of the contract for which continue during the running of said plaintiff seeks to recover in this action patent, and of all renewals thereof, and of are: all improvements upon such patent, and That rails were not made in good, to all patents on the machinery for the workmanlike manner; proper efforts to manufacture, &c., such license to be ex. introduce and sell them were not made; clusive in such states, and to continue so they have neglected to fill orders, &c., on long as defendants should supply the de- which plaintiff would have received large mand for such rails in such states; all royalties; they have not paid for the marails to be of good material and made in chinery sent by plaintiffs to them, pursua good workmanlike manner; plaintiff to ant to said contract, although they have have the right to inspect all rails before de- made 3,000 tons of rails, and have relivery to purchasers.

ceived orders for enough more to make up And the conditions were :

7,000 tons, when, by the terms of the 1. Defendant was to pay a royalty of contract, they were bound to pay for said $2.50 per ton on first 7,000 tons manu- machinery. factured.

On the trial it was proved that defen2. Plaintiff to have notice and in-dants did manufacture some of the rails, spect sales.

and that they had made large contracts 3. Royalty on defective rails to be one with different railroads to manufacture half.

more, and that such contracts were not 4. Defendants to keep true accounts, filled, and if filled were filled by other to be open at all times to plaintiff's in- rails, and generally that defendants had spection.

by their course tended to injure plaintiff's It was further agreed that plaintiff rails. should send to defendants, at Cleveland,

The plaintiff was non-suited on the all such machinery, tools, &c., then in ground that there was no covenant to his possession at Rochester, for the man- manufacture rails in the contracts. ufacture of said rails, the value thereof to

J. B. Perkins for applt. be agreed on between the parties if they could agree, and if they could not agree,

George F. Danforth for respt. then arbitrators were to be appointed. Held, That the contracts between the Ownership of the machinery to be in parties were not a mere license to make plaintiff until defendants should have and vend the Booth rails, which plaintiff made 7,000 tons of rails, and then to be- could make at any time, and on which no long to defendants, and to be paid for by action could be maintained against dethem.

fendant for a breach of the conditions

thereof. The contracts show that the Julius Hilborne, as assignee, &c., respt. intention of the parties was different. The v. Christian Kolle, et al, applts. plaintiff relinquished the manufacture of this court has power in its discretion to the rail, and transferred not only the

allow the discontinuance of an action

without costs. right to manufacture them to the defendants, but also the machinery they had

Appeal from an order allowing the used in manufacturing them, and in re- plaintiff to discontinue without costs. . turn they received so much as royalty.

The plaintiff in this cause is an assignee That it is not necessary, in order to in bankruptcy. He had previously brought render a party liable upon a contract, that a suit in the U. S. Circuit Court to recovit should contain an express agreeinent er certain property alleged to belong to on his behalf, if by the relations of the the bankrupt which was in the name of parties, and the subject matter of the con- bankrupt's wife. In the progress of that tract, a duty is owing from the one not

suit there was a reference to a commisexpressly bound by the contract to the sioner, who proceeded to take testimony. other, in reference to the subject of it.

There were other proceedings against the That the law implies a promise by the bankrupt in which testimony had been defendant to perform all the conditions, taken before the same commissioner. in the performance of which the plaintiff

In the suit in the U. S. Circuit Court has a pecuniary interest, except that between the same parties as in this suit, a which relates to the payment of the price stipulation was entered into between the of the machinery. That defendant's respective counsel. It was agreed that liability to pay for the machinery de- on the final hearing thereof either party pended upon two conditions: One is the might read any part of the whole of the making of 7,000 tons of Booth rails, and evidence taken before the commissioner the ascertainment of the price by mutual on the reference to him, in another case agreement or by arbitration.

of Hilborne, assignee, v. Obenier, et al, Either party could terminate the con- subject, however, to objections and exceptract at pleasure, but the defendants, in

tions the same as if regularly taken in the order to relieve themselves, were bound

suit in the U. S. Court between the same to give notice of their determination, and parties as in this suit, l ut without prejureturn to plaintiff the machinery. They

dice to the right of the parties to call witcould not keep silent and omit to make nesses already examined or other witnesthe rails, return the machinery, and de. prive plaintiffs of the royalty to which Subsequently another stipulation was they would have been entitled had the entered into in the suit in the U. S. Cirdefendants, in good faith, performed the cuit Court, between the same parties as in contract.

this suit, whereby it was agreed that the That the plaintiffs cannot recover the complainant should institute an action in price of the machinery in this action, or the Supreme Court against the defenduntil the price is ascertained in one of the ants, for the same cause of action, in lieu ways provided in that contract.

of the U. S. Circuit suit, and that the Non-suit set aside and new trial granted. pleadings should be the pleadings of the Opinion by Mullin, P. J.

action in the Supreme Court, and the same should be referred to a referee, and

that the evidence and exhibits which were DISCONTINUANCE.

to be read and submitted on the final N. Y. SUPREME COURT, GENERAL TERM. hearing of the cause between these same FIRST DEPARTMENT.

parties in the U. S. Circuit Court suit,



should be read and submitted to the

CONVERSION. referee in this suit, in the same man

CITY COURT OF BROOKLYN, GENERAL ner, and subject to like objections and

TERM. exceptions, and that the referee make his report upon such evidence and exhibits, Corsan, respt., v. Oliver, applt. and none others.

An action for conversion will lie Upon the hearing before the referee in against one who has unlawfully this suit, certain evidence, alleged to be parted with the possession of anothmaterial, was offered and objected to on

er's property. In such case he is rethe ground it was not within the terms

garded, to all intents and purposes,

as still in possession, sufficiently so of this stipulation, plaintiff supposing that to render him liable in replevin or he could introduce any evidence taken trover. before the commissioner in any of the suits wherein he took testimony. Plain

Appeal from judgment entered on tiff then made a motion to have the stipu

verdict. lation modified to allow the introduction One Hughes, in August, 1868, hired of the evidence sought to be introduced of defendant a store in Blooklyn, took in this suit, or that the action be discon- possession and put in certain fixtures for tinued without costs.

business purposes. The lease under which An order was entered discontinuing he held in the 7th clause, contained the this action without costs, from which or usual provisions, as to renting and reder this appeal was taken.

letting in case the premises were deserted.

In December, 1868, the sheriff took R. S. Newcomb, for respt. D. & S. Riddle for applt.

possession of the store and Hughe's

goods, by virtue of executions against Held, That the action was of an equit. Hughes, under which the goods were sold, able nature, and costs were within the the fixtures, however, remaining in the discretion of the court, and sufficient rea- store. About January, 8, 1869, the son existed for the exercise of that discre- sheriff removed from the premises which tion.

remained unoccupied until February, Barante v. Deyermand, 41 N. Y., 335. 1869, when defendant re-let them to one

The order was broader, perhaps, than Fleming, leaving the fixtures in the store, the situation of the parties required, for but not including them, in terms, in the the difficulty found to have been pro- lease. duced might be removed by a modifica In March, Hughes assigned the fixtures tion of the terms of the stipulation. Stip to plaintiff, who demanded the same of ulation should be so far modified as to defendant, but was refused--defendant allow the plaintiff to discontinue without asserting a prior claim to them, on accosts, unless the defendant will stipu- count of arrearage in rent. late within twenty days after notice of this A second demand was made by plaindecision, that the plaintiff may, upon the tiff's attorney, who was answered by detrial of this action, read all the evidence fendant, that he had rented them with taken in the different proceedings had in the premises. the United States Court. In that event It was urged by defendant that this the motion for leave to discontinue should action could not lie, in that the conversion be denied, otherwise affirmed.

occurred, if at all, before plaintiff had Opinion by Daniels, J.; Brady, J. con- title to the fixtures, and to recover, he curring. Brady, J., wrote opinion with must show a conversion as to himself, same result.

after he became owner; and he must

show that defenāant had control of the ny. He was the possessor of a draft, drawn fixtures and could have complied with to his order on certain bankers in New the demand when made.

York, for $74 in gold. The draft was acVerdict for plaintiff.

cepted payable at Germania American Hedley & Parsons for respt.

Bank, and endorsed by the acceptors. Slereing & Walden, for applt.

The draft was duly presented at the

Germania American Bank. On appeal, Held, That the lease by

The teller not being able to read the defendant to Fleming, did not include the body of the draft, it being in French, fixtures in terms, and there is room to looked to the figures, which were 74, and doubt that defendant really intended to

an irregular mark much like the letter z, put them out of his control, in case, at intended to prevent any addition to, or any time, it should become his interest to alteration of the amount). He mistook resume that control.

it for 742, and paid the prisoner $742 in Assuming, however, that defendant gold coin, who received the same without was out of possession, we do not think

comment, and went off. that fact would be a bar to this action.

This mistake being detected, prisoner It is well settled that an action will lie in favor of the true owner, against a per

was arrested. He denied having received

more than $74. son who has parted with, and at the com

Verdict of guilty. mencement of the action, is not in law or fact in possession of the property (38

Chas. W. Brooke, for pltff. in error. N. Y., 475; 23 N. Y., 264; 27 How, Pr., B. K. Phelps, for deft. in error. 420). When the defendant has unlaw

On appeal, Held, That if the prisoner fully parted with the property sought to found on counting the money, that he be recovered, he is to all intents and pur- had in his possession that to which he poses, to be regarded as still in possession, knew he was not entitled, and which he sufficiently to render him liable either in knew the owner did not intend to give replevin or trover.

him, he was bound to return it, and if he Actual forcible dispossession of plain did not, but concealed its possession, and tiff need not be shown.

sought to deprive the owner of it, and if Judgment affirmed.

this error was discovered at the bank, Opinion by McCue, J.

when the money was delivered, and he

took it with the intent to defraud the GRAND LARCENY.

owner, the crime was then complete.

But if the error was not noticed until N. Y. SUPREME COURT, GENERAL TERS, afterward, and if the intent of felonious FIRST DEPARTMENT.

appropriation was then formed and exeWolfstein, plt ff' in error, v. The People, cuted, the legal guilt of the prisoner was defts in error.

at that time incurred. It will not do to If a person is overpaid by mistake, say, that because the owner parted volun

and at the time of discovering the tarily with his property, therefore there error, whether that be at the moment was no unlawful taking, there may be the of payment, or afterwards, forms the physical act, but there is absent the the intention of defrauding the intelligent assent to the transfer, upon rightful owner as to such overpay, which consent must necessarily depend. ment, it is larceny.

The original taking even may have been Writ of Error to the General Sessions. lawful, but the legal accountability as for Prisoner was indicted for grand larce- crime began when the error was discov

ered and the intent formed to wrongfully in the declaration as rendered in the Cirand feloniously deprive the owner of his cuit Court for the District of Wisconsin, property.

on the 27th October, 1870, for $708.90; Conviction affirmed.

and the notice to the supervisors, set out Opinion by Westbrook, J.; Davis, P.J. in the declaration, uses the same lanand Daniels, J., concurring.

guage. The other judgment is described as rendered in the Circuit Court for the

Western District of Wisconsin, June 10, DAMAGES. TOWN OFFICERS. VA-1871, for the sum of $1,531.56. RIANCE.

The answer of the defendants denies U. S. SUPREME COURT.

that there is any such judgment as that

first described. And as to the second Robert Dow, piff. in error, v. David Humbert et al., dlefts. in error.

judgment, they say that after it was ren

dered the town of Waldwick was divided Decided January, 1876.

and a part of it organized into the new In an action against town supervisors for town of Moscow; that thirty-seven per

failure to place certain judgments upon cent. of the judgment was collectible from the tax list as required by law, the damages in the absence of proof of ac- that town, and that it was not the duty of tual, are limited to nominal damages; the defendants to levy the whole judgthe supervisors do not become debtors ment on the property of the citizens of for the full amount of the judgments. Waldwick. Under an allegation of the recovery of a judgment in the Circuit Court for the

On these issues the parties went to trial District of Wisconsin, a judgment 06- before a jury. In support of the issue as tained in the Eastern District Court of to the existence of the first judgment, Wisconsin is inadmissible, where the plaintiffs introduced a copy of a record of defendant has pleaded NUL TIEL. a judgment between the same parties, for

In error to the Circuit Court of the the same amount, and of the same date as United States for the Western District of that described in the declaration, in the Wisconsin.

Circuit Court for the Eastern District of The defendants are sued by plaintiff for Wisconsin, to which defendants objected a failure to perform their duty as Super- because it varied from the judgment desvisors of the town of Waldwick, in the cribed in the declaration, and in the noCounty of Iowa, Wisconsin, in refusing tice given to the defendants to place it on to place upon the tax list the amount of the tax list. The court sustained the obthe judgments recovered by him againstjection. There had been for many years a that town. By the statutes of Wisconsin, Circuit Court for the District of Wisconno execution can issue against towns on sin. Shortly before this judgment was judgments rendered against them, but rendered the district was divided into two the amounts of such judgments are to be districts, and the circuit courts were by placed, by order of the supervisors, on the the expressed language of the act of Connext tax list for the annual assessment and gress called the circuit court for the eastcollection of taxes, and the amount so ern district and the circuit court for the levied and collected is to be paid to the western district respectively. judgment creditor, and to no other pur Plaintiff introduced a record of his pose.

judgment for $1,531.56 in the western The declaration avers due notice served district of Wisconsin, and notice and deon the supervisors of these judgments, mand as to that to the supervisors. and demand that they be so placed on the

This being all the testimony, plaintiff tax list. The first judgment is described requested the court to charge the jury

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