known the course of nature, and if the any other goods which may from time child lıad been born within nine months to time, during the existence of this after the death of the tenant for life, he mortgage, be purchased by the grantor could not have been twenty-one at the and put into said store to replace any time when the particular estate deter- part of said stock which may have been irined. It is quite impossible that she disposed of.” Among the covenants could have intended the attainment of was one that if the stock should be the age ot twenty-one to be part of the diminished "faster than said sum heredescription of the person to take. by secured is paid, said grantor is to Therefore, in my opinion, the plaintift furnish further security for said sum, takes a vested estate subject to be whenever required by said grantee." divested in the event of his dying un Two of the notes were fully paid, but der twenty-one; and I so decide. one that came due in November, 1875, Opinion by Jessel, M. R.

not having been paid in full, the de

fendant demanded further security, and MORTGAGE OF CHATTELS, a mortgage was given of such stock as MORTGAGOR REMAINING IN

had been acquired during the year. POSSESSION. MORTGAGE OF

This was about two weeks before the AFTER ACQUIRED CHATTELS petition in bankruptcy was filed, and

the theory of the bill was that it was a U. S. DISTRICT COURT, DISTRICT OF

preference. The complainant afterMASSACHUSETTS.

wards asked leave to amend, and alBrett v. Carter.

leged the first mortgage to be void on Decided December Term, 1875. the ground that the mortgagor was A mortgage of chattels which permits tacitly permitted to sell all the goods

the mortgagor to continue in posses- in the ordinary course of his trade. sion and to sell the goods in the or The defendant insisted that both dinary course of business is not void

Whether there is a fraud in mortgages were valid. the particular case, is a question of

J. B. Richardson, for the plff. fact.

C. K. Fay, for the deft. A mortgage of after-acquired chattels Held, I had supposed it to be well is valid.

settleu, after much debate and conflict Bill in equity by the assignee in of opinion certainly, but substantially bankruptcy of one Osborne N. Sargent, settled, that when a vendor or mortgaagainst a mortgagee of the stock of sta- gor was permitted to retain the possestionery and other similar goods. It sion and control of his goods, and act appeared that in November, 1874, Sar- as apparent owner, with or without gent bought out the stock in trade of power to sell them, the question wheththe defendant Carter, as carried on by er this was a fraud or not, was one of him in a certain shop in Beacon street, fact in each case, excepting under a Boston ; and on the same day gave particular clause in the bankrupt law back a mortgage to secure the payment of England, which has not been adopted of the purchase money by installments, in this country. represented by promissory notes ex It is very strange that after our legtending over a period of four years. islatures have met the difficulties of The mortgage conveyed the stock, "and | Twyne's Case, by requiring registra

per se.

er v.

tion, which gives not only constructive, ence in principle between a mortgage but in most cases actual, notice of mort- by such a corporation of its rolling gages, and after many of them have stock not yet in esse, and that by a provided that fraud shall be a question trader, of his future stock in trade in a of fact for the jury, the decisions which particular shop, and none can be sucI have cited, and others following them, cessfully inaintained. The truth mere. should have reverted to the harder doc- ly is that from the nature of these railtrine which had already grown obso. way mortgages, and their magnitude lete, that such deeds should be held and importance, attention has been void in law if the mortgagor retained called to the great injustice that would possession and control. This is all that be done in displacing the first mortthose cases amount to.

gage in favor either of general creditors, The doctrine is combatted with great or even of subsequent mortgagees. But force of reasoning, much greater than the injustice exists in all such cases in has ever been expended in its support, a less degree. in the two cases following, to which I I rather incline to the belief that the have great pleasure in referring: Hugh-law of Massachusetts in equity is to.

Cory, 20 Iowa, 399; and Gay v. day, that a mortgage of after-acquired Bidwell, 7 Mich., 519.

chattels is valid. The second point in this case is no

I am of opinion that the mortgage of less interesting than the first. By the 1874 created a valid lien in behalf of mortgage the stock that shall be put the defendant upon the stock of goods into the shop by the mortgagor is in- in the shop at the time of the bankcluded in the conveyance.

It is un- ruptcy, and that the mortgage of 1875 doubtedly the law of courts of equity, does not vitiate their lien. that after-acquired chattels, definitely

Opinion by Lowell, J. pointed out, as, for instance, by refer

INNKEEPER. NEGLIGENCE. ence to the ship, mill, shop, or place

EVIDENCE. into which they are to be brought, may N. Y. COURT OF APPEALS. be lawfully assigned as security. The common law recognizes such transfer

Faucet, respt., v. Nichols, applt.

Decided March 21, 1876. of land, by way of estoppel, and of chattels when they are the produce In, an action against an innkeeper for either of land, or of chattels already

loss of a guest's property by fire, when

the defense, under chapter 638 laws owned by the transferor, but not of fu

of 1866, was that the fire was of in ture chattels simpliciter, unless there cendiary origin, and defendant's be some novus actus interveniens after witnesses had given testimony tendthe chattels are acquired, that is to say,

ing to establish, and plaintift"s witeither some new transfer, or possession

nesses testimony tending to rebut the

defense evidence, that an attempt taken under the old.

to fire an adjacent building, on the It is true that many of the late cases same night is admissible. have arisen upon mortgages given by Negligence by an innkeeper in omitting

precautions which a prudent man railroad companies, and some few judges ought to take to protect the property have founded a distinction upon that

of a guest, will deprive him of the circunstance. But there is no differ benefit of the stutute of 1866.

This action was brought against de- the negligent omission to protect and fendant, as an innkeeper, to recover remove the property of the guest after the value of a span of horses, buggy, the fire had commenced. It appeared &c., destroyed by the burning of de- that the fire occurred between nine and fendant's hotel barn. The defense ten o'clock in the evening. The fire was, that the fire was the work of an was discovered near the window of the incendiary and occurred without fault loft, and it was shown by the defendant or negligence on the part of defendant, that two persons, not recognized or and that defendant therefore was not or identified, ran out of the alley from liable under section 1, chapter 638, laws near the barn just after the alarm was of 1866.

given and disappeared. His witnesses Evidence was given on the part of also testified to appearances, indicating the defendant, tending to show that that kerosene or some other combustithe tire was the work of an incendiary ble fluid had been put upon the floor and was set in the hay loft, to which of the barn. Defendant and his seraccess was had through a window of vants and the tenant, who occupied a the barn opening into an alley, which part of the building, testitied that the had been left open for several weeks, fire was not produced by their act or and that during this time lumber was neglect. Plaintiff controverted the fact piled against the barn, so that a person alleged by defendant that the fire was could easily climb upon it and enter the work of an incendiary, gave evidence the loft through the open window. The tending to contradict the testimony of court submitted to the jury the ques- the defense to the presence of kerosene tion whether defendant, under the cir- or other burning fluid on the barn floor, cumstances, was chargeable with negli- and one of plaintiff's witnesses testified gence, and ruled in substance, that if that defendant's ostler was accustomed the jury should find that this was a to smoke in the barn, and that he saw negligent act which contributed to an him about eight o'clock on the night of incendiary firing of the barn, defendant the fire on the bedding in one of the was liable for the loss sustained by the rear stalls smoking a pipe and reading plaintiff.

by the light of a lamp. W. B. Ruggles for respt.

Held, That this evidence was proGeo. B. Bradley for applt.

perly received, as each party had the Tield, That the question of defend- right to show any circumstance in supant's negligence was properly submit- port of his theory as to the origin of ted to the jury; that negligence on the fire which legitimately tended to the part of an innkeeper in omitting establish it. precautions which a reasonable and Defendant called on T. as a witness prudent man ought to take to guard and offered to show by him that on the against an incendiary fire, is such neg- next street west, within forty rods of ligence as will deprive him of the the barn which was burned, on the benefit of the statute. 2 L. Raym, 909; same night, an attempt was made to 1 E. & B., 165; 51 N. Y., 180. fire a building at a point where the

Negligence which precedes and fa- building was close and compact, an cilitates the commission of the crime, that kerosene, paper and other comis as much within the statute of 1866 as bustibles were used in the attempt.

This evidence was objected to as imma When the parties rested upon the terial and was excluded.

trial the defendants made several reHeld, error. That the evidence of- quests, either to direct a verdict for fered had a direct and material bearing them generally or for some one of upon the question as to the character them, which was denied. There was of the fire which destroyed the barn.

no request to submit any question of Judgment of General Term, affirm- fact to the jury. Upon plaintiff's moing judgment for plaintiff on verdict, tion the court directed a verdict for reversed and new trial granted. plaintiffs, exceptions to be heard in the Opinion by Andrews, J.

first instance at the General Term.

Sewell & Pierce for applts. EXCEPTION. PRACTICE. USURY

S. B. Marsh for respt. N. Y. SUPREME COURT. GENERAL TERM,

Feld, That the defendants, by the FIRST DEPARTMENT.

course pursued by them, rested upon Charles E. Strong, as receiver &c., the ground that the usurious agreement respt., v. The N. Y. Laundry Manu had been successfully sustained by the facturing Company, et al., applts.

evidence, and called upon the court to Decided January 28, 1876.

dispose of the case upon questions of Where a general exception is taken to law arising from undisputed facts.

the refusal of a judge to direct a Their request assumed there was no verdict for defendants, no request dispute about the facts, and nothing, being made that the justice submit to therefore, to go to the jury. They althe jury any questions of fact, on appeal the party making the request lowed the judge presiding to be substiis concluded by the finding of the tuted in the place of the jury, and not justice from raising the point that having asked that the questions presentspecific questions of fact should have ed by the facts should be submitted to been submitted to the jurythe jus the jury,they are concluded by the findtice having thereafter directed a verdict for plaintiff:

ing of the justice. Wacchell v. Hicks, The defence of usury should be made 18 N. Y. Rep., 558; Marine Bank of

out by a fair preponderance of evi- New York v. Clements, 31 N. Y. Rep., dence.

33. This action was brought against the Defendants cannot, therefore, upon corporation defendant, maker, and the appeal, under a general exception to individual defendants as indorsers of a the judge's subsequent direction that a promissory note. The answer set up verdict be entered for the plaintiff that the note was made for the accom- make the point that there were ques modation of Everett Clapp, and was tions of fact which should have been endorsed by Gill for his accommoda- submitted to the jury. They are theretion, without any consideration having fore deprived of any advantage, either passed between the parties until Everett from the exception taken to the refusal Clapp endorsed it and delivered it to to grant their requests or either of the Atlantic National Bank, of which them, or to the direction of the judge plaintiff' is receiver. That such transfer that a verdict be entered for the plainwas made by Clapp upon an usurious tiff. But upon the examination of the agreement, and that the bank received case, it appears that the evidence given more than seven per cent.

in behalf of the defense did not satis

factorily sustain the defence of usury. was no agreement between plaintiff Upon the defendant's evidence it is and S. H. G. that the new note should left doubtful whether the note was an be taken as collateral to the old one, accommodation note or not. The de- and that the latter should be retained fense of usury should be made out by a as security. Defendant did not know fair preponderence of evidence, and it of any of the transactions between S. does not seem to have been in this case. H. G. and plaintiff. Defendant proved Judgment affirmed.

under objection by parol that he signed Opinion by Brady, J; Davis, P. the note as surety, the court overruling J., and Daniels, J., concurring.

the objection and plaintiff excepting.

Held, no error; That parol proof

that defendant signed the note as sureNEGOTIABLE NOTE. SURETY.

ty was admissible, it being material for EVIDENCE.

the purpose of enabling him to estabN. Y. COURT OF APPEALS. lish the defense that he was discharged Hubbard, applt., v. Gurney, respt. by the extension of time given S. H. D. Decided March 21, 1876.

by plaintiff, the latter knowing that In an action by the payee of a note de!endant had signed as surety.

against one of two makers, parol Also held, That from the facts proved evidence is admissible to show that there appears to have been an implied defendant signed the note as surety, agreement to take the new note as a If the payee, under such circumstances,

take a new note of the other makers, payment of the first, or to extend the extending the time of payment, and time of payment of the latter in favor of procures the new note to be discount- S. H. G. As this was done without the ed, the surety on the first note is dis- knowledge or assent of defendant his charged; the raising of the money rights were thereby affected and he was on the new note is a sufficient consideration.

discharged, 3 Den., 512; 23 Barb., 478; This action was brought upon a That the fact that the original note was

39 id., 610; 43 id., 444; 38 N. Y., 96. promissory note given by S. H. G., not surrendered did not change the and defendant being surety in fact for legal effect or real character of the con$1,000, dated April 5, 1872, payable tract to be implied from the transacone day after date to plaintiff. May tion, 6 Duer, 304; 5 Hill, 465. That 18, 1872, a new note was given by S.

the raising of the money upon the H. G., payable at thirty days and in

new note, and the receipt thereof by dorsed by plaintiff, upon which the money was obtained and paid to plain. plaintiff

, was sufficient consideration for

such a contract. tiff. When this note became due a

Halliday v. Hart 30 N. Y., 474 ; small payment was made and a new note given payable in thirty days, upon

Cary v. White 52 N. Y., 138, distinwhich $200 was afterwards paid, leav- guished. ing a balance of $700 unpaid, which

Judgment of General Term, affirmplaintiff paid. The note in suit was ing judgment on verdict for defendant, given with the understanding that one

affirmed. B. was to sign as surety, but not doing Opinion by Church, Ch. J. 80 defendant signed instead. There

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