« ForrigeFortsett »
The tenant's remedy in this case is to pay the rent before the order of disposses- substantially decided by the Court of Ap
On appeal. Hell, That it has been sion is issued, or redeem under the statute peals (52 N. Y. 96), that section 57 of after his removal. (Laws of 1842, p. 293.) act of 1864, did not intend to take away
Order reversed and injunction dis- the general jurisdiction of the State solved. Opinion by Davis, P. J.; Brady and the National Banking Act, wherever
courts over corporations, created under Daniels, J. J., concurring.
they may be located.
We are not asked to disregard that deATTACHMENT. NATIONAL
cision, but to hold that Congress has BANKS. N. Y. SUPREME COURT, GENERAL TER», diction of the State Courts, in suits
power, notwithstanding the general jurisFIRST DEPARTMENT.
against such banks, to enact that no atSouthwick, respt. v. First National tachment, &c, shall be issued before final Bank of Memphis, applt. The restriction in section 57 of Act of perty, and that the amendment of 1973 to
judgment against such banks or its proCongress of 1864, as amended by sec- section 57 has imposed such restriction. tion 2, chapter 269 of laws of Con. This amendment as to attachment. &c., gress, 1873 (3d Session), as to issuing was probably made on account of the naattachment, execution or injunction, tional banks having become liable to atb-fore final judgment against na- tachment as foreign corporations, in actional banks, does not relate to such cordance with the decisions of the courts banks as are located in other States of this State, owing to the peculiar definithan that in which the suit is brought, tion of our code (sections 227 and 217). but to those that are within such State.
This amendment should be construed Appeal from order made at Special with an eye to the evil sought to be avoidTerm denying motion to vacate an attach- ed, and not that it was intended to take ment.
away the ordinary and often the only Plaintiff, at the beginning of this ac process by which an action can be tion, obtained an attachment, and under brought in our State Courts against a it levied upon certain moneys, in one of banking association situated in another the New York banks, belonging to de
The prohibition is only to “any such Defendant is a national bank located suit, action or proceedings," and we find and doing business in Memphis, Tennes- that the word such,” so far as State, see, and moves to vacate this attachment county, or municipal courts are considon the ground that it is in violation of ered, relates only, to suits “in the county section 57 of t e National Banking Act of or city in which such association is lo1864, as amended by section 2 ot chapter cated," and it is only “in any such suit, 269 of the laws of Congress of 1873 (34 action or proceedings in any State, county session.)
or municipal court” that the proviso This act as amended provides, “That forbids the issuing of an attachment, &c. suits, actions and proceedings against any
This seems the plain construction of the association, under this act, may be had language used. It suits may be brought
* in any State, county, or muni. against National Banking Associations cipal court in the county or city in which located in other States, as held in 52 Y. said association is situated, having juris. N. 96, then such suits may be commenced diction in similar cases.”
by the process of attachment. And provides further, “That no attach
The prohibition as to National Banking ment, injunction or execution shall be Associations located within the State may issued against such association, or its pro
be wise and salutory, as these may be property, before final judgment in any such ceeded against by the ordinary personal suit, action or proceedings, in any State, process of our courts—but as to such as
cannot be reached by personal process, county or municipal court."
The court below, on the authority of Congress has left intact the remedies proCook v. The State National Bank (52 n. vided by our State laws. Y. 96), refused to vacate the attachment.
Judgment aflirmed, Jno. E. Burrill for respt.
Opinion by Davis, P. J; Bruly and Francis D. Barlow for applt.
Daniels, J.J., concurring.
MONDAY APRIL 17, 1876.
NEW YORK WEEKLY DIGEST. Foster & Gwyn) being called by the plain
tiff, testified that his firm had dealt in the VOL. 2.)
matter with Vaudry alone, as the plain
tiff's broker. BILL OF LADING.
The defendants offered in evidence the SUPREME COURT OF PENNSYLVANIA. following letter, as tending to show that
Henry v. The Philadelphia Warehouse Vaudry had authority to ship the cotton : Company
NEW ORLEANS, April 27, 1872. Decided February 21, 1876.
Mr. Thomas Henry :
Yours of the 20th received. The reaA broker who comes into possession of
goods without the knowledge or con- son why you have not received the bill of sent of his principal, ships the goods lading of the 21 b. c. was that the steamer and takes a biil of lading, may by for Philadelphia was full, and I could get endorsement transfer the title to a no freight. I will ship your 21 b. c. on bona fide pledgee, under the laws of the steamer Liberty via Baltimore. She Louisiana,
leaves on Thursday evening. Error to the District Court for the City
J. VAUDRY, Jr. and County of Philadelphia.
Admitted under objection, and excepReplevin by Henry to recover twenty- tion to the plaintiff. one bales of cotton in the possession of The court (Hare, P. J.) charged the the defendants. Pleas: “Property in the jury: “If you find from the evidence defendants," and "property in the Cres- that Vaudry had possession of and actucent City Bank of New Orleans.” Repli- ally shipped the cotton, received a bill of cation and issue.
lading therefor, and endorsed it to the The plaintiff's evidence was, that, being bank, who took it in good faith, your verin New Orleans in April, 1872, he went dict should be for the defendants. to one Vaudry, a cotton broker, who took Verdict for the defendants, ard judghim to Foster & Gwyn, cotton factors. ment thereon. From them he bought twenty-one bales The plaintiff took a writ of error, asof cotton, for which he paid the same signing for error the admission of the letday, taking a receipt (which was in evi- ter, and the charge of the court. dence) dated April 13, 1872. He then re The Louisiana statute (Revised Stats. turned, leaving the cotton with Foster & SS 2482, 2485) making bills of lading neGwyn, who said they would see it shipped. gotiable provides that, Vaudry afterwards, without the plaintiff's
A bill of lading may be transferred by consent or knowledge, took the cotton endorsement thereon, and that the party into his own possession, shipped it to the receiving such transfer shall be regarded plaintiff, and having taken to himself the as the owner of the property named in the bill of lading therefor, drew on the plain- bill, so as to secure any pledge or lien tiff on May 1, 1872, for nearly the whole made thereof to him. Also, that “all reprice of the cotton. He then fraudulent-ceipts, bills of lading, vouchers, or other ly endorsed the bill of lading to the bank, documents issued by any cotton-press and attached it to the draft. The plaintiff owner, wharfinger, forwarder, or other refused to pay the draft, whereupon the person, boat, vessel, railroad, transportabank took possession of the cotton, and tion or transfer company, as by this act stored it with the defendants, from whom provided, shall be negotiable by endorseit was replevied.
ment in blank or by special endorsement, Gwyn (a member of the said firm of in the same manner and to the same
effect as bills of exchange and promissory ment of a promissory note which she notes now are.
signed in conjunction with her husband. Held, 1. This case is governed by the A judgment was rendered in favor of the Statute of Louisiana, where the transac- plaintiff, subjecting the property specifiction took place.
ally to the satisfaction of the demand. It is clear, from the evidence, that At the trial the defendant admitted Vaudry, who shipped the goods and took that she signed the note, and testified that the bill of lading, was in actual possession it was done at the request of her husband; of them by delivery from the factors. His and that she received no part of the conpossession gave him an apparent co:.tro sideration and did not know for what over them, and he thus shipped them and purpose the note was made. She was took the bill of lading to himself. He then asked what connection the note hud thus had all the indicia of property or with her separate estate, but the question power over the goods when he endorsed was objected to by the plaintiff and the the bill of lading. Under these circum. objection was sustained. She was also stances and by the operation of the statute, asked if she knew that she nad a separate he stood in a position to transfer the estate, but this question was ruled out. property in the goods to a bona fide The further inquiry was put whether by pledgee for value and without notice. signing the note she intended to bind her
2. The letter was a minute but not im- separate estate; but the court excluded material part of the res gestæ, and its re- the question. ception no error.
The law in reference to inarried women Judgment affirmed.
binding their separate estates has been so Per curiam opinion.
long established in this State that it has
become a rule of property and cannot MARRIED WOMAN. CHARGING
now be shaken. SEPARATE ESTATE.
A married woman is incapable of mak
ing a contract except in regard to her SUPREME COURT OF MISSOURI.
separate property. But in reference to The Metropolitan Bank v. Lucy G. that she is treated as a femme sole, and if Taylor et al.
she gives a note the law implies, in the Decided January Term, 1876.
absence of proof to the contrary, that she A married woman is incapable of intends to bind it. It may appear that
making a contract except in regard there was no intention to bind the sepato her separate property, but in ref rate estate, but the intention must be erence to that she is treated as a manifested from the contract itself, and femme sole ; and if she gives a note, cannot be shown by parol testimony. The the law implies, in the absence of intent that the separate property should proof to the contrary, that she iretends to bind her separate estate. It not be bound, to be of any importance, may appear that there was no inten- should be a part of the contract; that is tion to bind the separate estate, but to say, that the writing or contract should the intention must be manifested show on its face, when properly interfrom the contract itself and cannot preted. that no charge upon the separate be shown by parol testimony. estate was intended to be created. Appeal from St. Louis Circuit.
The court, therefore, did not err in This was a suit brought for the purpose ruling out the testimony which was offerof charging the separate estate of the deed for the purpose of showing that the fendant, Lucy G. Taylor, with the pay- defendant signed the note with an inten
tion different from that implied by law is ownership under a deed executed by As the defendant, when she signed the the widow and devisee of Dennis Harris, note, possessed separate property, the law lated December 13th, 1868, by which she presumes that she intended to render that conveyed to him the street in fiont of property liable for the satisfaction of the Dalley's grant or the locus in quo. The obligation, and as nothing different ap- disputed territory was never used as a pears from the contract itself, the judg- street. It was enclosed by Dalley, alment should be affirmed.
though he had from his deed notice that Judgment affirmed.
it had been dedicated to the public use as Opinion by Wagner, J.
a part of 157th street. The referee sound in favor of Grinnell, and it seems, upon
the propositions, that it was covered by AWARD.
the grant of Mrs. Harris, and that there N. Y. SUPREME COURT, GENERAL TERM had been no adverse possession by Dalley. FIRST DEPARTMENT.
The referee found that the locus in quo In the matter of the application of the had been dedicated to either public or Department of Public Parks to lay out a private nse as a street, and only a nominal public drive from 155th street.
award should have been made for it by Decided January 28, 1876.
the commissioners. The dedication of the No award can properly be made for land as a public street was made by the
other than nominal damages for the grantor, through whom both disputants taking of land for public use, which lerive title, namely, Dennis IIarris. has already been dedicated by a for
Josiah Parker for Grinnell. mer owner to such public use. Where commissioners, in ignorance of
Henry Woodruff for Dalley. the fact of a former dedication, Held, That the appropriation of the award damages to unknown owners, land thus made entitled the owner of the the court especially, where all the adjoining land to nominal damages only, parties are before it, may correct the Harris' grant was to the line of the street, error.
and any subsequent conveyance of the bed Appeal from order of referee declaring of the street to the centre of it, or the George B. Grinnell entitled to an award whole of it, if owned by his grantor, made to “unknown owners.'
would confer no right upon the grantee The commissioners of estimate and as- to demand or receive any compe'isation sessment, for laying out a road or public for it from the city. The language of the drive northward from the southerly line conveyance to Dalley constituted a dediof 155th street to the intersection of the cation of the land as a street to the public Kingsbridge road, with Inwood street, in use, and its employment for that purpose the City of New York, awarded for a part authorized the grant of nominal damages of the land taken for the purpose indi. only. cated, and to unknown owners the sum The commissioners made the award in of $1,547. The land formed a part of ignorance, doubtless, of the dedication, 157th street. This award was claimed on and if not of that fact certainly in ignothe one hand by George B. Grinnell, and rance of the law. This may justly be ason the other hand by John Dalley. Dal sumed, but if not then this court ex debito ley's title was derived through a deed justitiae can correct the error into which dated December 9th, 1853, bounding the they have fallen. This power cannot be premises conveyed by the northeasterly questioned, and should always be employside of 157th street, and Grinnell asserted ed in a case like this, where the award is
general, to unknown owners, and not action brought for that purpose, been enspecific, in order to prevent a palpable joined from paying any expenditure or wrong particularly when all the parties liability incurred by said commissioners. interested, as in this matter, are before the The complaint was dismissed, it was court.
said, on the authority of Maximillian v. Order made at Special Term should be the Mayor, 9 N. Y. Sup. Ct, Reports, 263. reversed, and the proceedings remanded Held, That the commissioners were not to the court below to be disposed of ac- independent of the city government but cording to this opinion. No costs of this its agents sp.cifically designated for a parappeal to either party.
ticular purpose to act in their behalf. In Opinion by Brady, J.; Davis, P.J., the case of Maximillian v. the Mayor, the and Daniels, J., concurring.
action was to recover damages for injuries received by plaini iff's intestate by a sub
ordinate of the board of health. Then COMMISSIONERS.
the entire management and government N. Y. SUPREME COURT, GENERAL TERM, was confided to the commissioners, and FIRST DEPARTMENT.
the court held the subordinates the agents Walter R. Wood and Charles P. Wil of the commissioners, and not of the city. liams, applts., v. The Mayor, &c., of New In this case the commissioners were to loYork
cate ard erect a building for and on beDecided March 6, 1876.
half of the city as its agents, having no Commissioners appointed by and in corporate or continuous power. The com
pursuance of an act of the legislature missioners acted for the city, and the city for a particular purpose, viz.: to is liable for the expense incurred. erect a court-house in one of the ju A motion was also made for a mandadicial districts in the city of New mus and properly denied, because the remYork, and having no corporate or edy was by action. The result of the recontinuous power, are agents of the city; anıl, the city is liable for ex- view, therefore, is that the judgment be penditures made by them in the pros reversed and a new trial granted with costs ecution of the work.
to abide the event, and that the order apThe remedy in such case is by action, pealed from be affirmed with $110 costs, and not by mandamus.
and disbursements to be adjusted upon the Appeal from a judgment dismissing the termination of this action. complaint, and directing exceptions to be Opinion by Brady, J.; Davis, P. J. and heard in the first instance at the general Daniels, J., concurring. term, and from order denying a writ of mandamus.
REVIVOR AND CONTINUANCE. Plaintiffs furnished materials for the erection of a court-house in the third ju. N. Y. SUPREME COURT, GENERAL TERM. dicial district, upon the purchase thereof
FIRST DEPARTMENT. by a commissioner appointed under an act In the matter of the last will and tesof the legislature, chap. 202, laws of 1870, tament of James Foster, Jr., and the peand the two police justices holding court tion of Mary E. Whittlesey. in said district, who, under said act, con Decided March 6, 1876. stituted a commission to build said court house. Defense, that the appropriation former trustee to open an order by
A proceeding by petition against a for said building was wholly paid out, and which he was discharged as tru tee expended, and that defendants had, in an under the statute, on the ground of