« ForrigeFortsett »
Teceipt of a lart of the goods, is the cas by injunction with the collection of • with defendant.
tudes. It was concided on the argument tha Petition for an injunction against the there was an acceptance. In regard t collection of a school district tax claimed the receipt, I should be inclined to say o be illegal : brought to the Court of Comthat where there is no actual removal o mon Pleas of Fairfield County. Upon a the things sold, the question depends on lemurrer the court (Brewster, J ) dismissed this proposition, viz: that when there has the petition, and the petitioners brought the been, during the existence of the verbal record before this court by a motion in contract, for however short a time, an ac
The points of law decided will be tual possession of the things sold, and sufficiently understood without a statement something has been actually done to th of the case. things themselves, by the buyer which
Foster, J. It is quite unnecessary to could only properly be done by an absu- the decision of this case to enter into any lute owner, there is evidence to go to a discussion as to the puwers and duties of a jury, of an actual receipt of the things court of equity to interfere by injunction This case clearly comes within this propo with the collection of taxes. The subject sition.
has been before this court in several cases Held (by Grove, J.), It seems to me recently. (Arnold v. Middletown, 39 that, in determining the question whether Conn. 401; Dodd v. City of Hartford, 25 there was a contract for an interest in land. Conn. 232.) The case of Dodd v. City of we must look to what the parties intended Hartford is on all fours with the case at to contract for.
bar. The only ground of difference sug. Ilere the trees were to be cut as soon as gested is tluit in that case the plaintiff possible, but even assuming thes were not sought to protect his personal property from to be cut for a month, I think the test being levied upon, and in this case the in would be whether the parties really looked junction is asked to protect real estate. to th ir deriving benefit from the land, or We perceive no substantial reason why an merely that the land should be in the injunction should be granted to protect real nature of a warehouse for the trees dur- estate from a levy that would not apply, ing that period. Here the parties clearly with equal force, to personal estate.
If never contemplated that the purchaser there be any difference, the necessity for should derive any benefit from the soil protecting personal property would seem to If the contract had been for the sale of a be the greater. A party might be deprived young plantation, of rapidly growing tim- of personal chattels, even under an illegal her which was not to be cut down until it taking, and so be compelled to resort to an had become substantially changed, and action for damages as the only redress. had derived benefit from the land, there Not so in regard to real estate. There might have been an interest in the land, could be no amotion of that by any levy, but this is not such a case. In regard to valid or void. That would remain in statu the second question, I agree with my quo ante censum. If the preliminary probrethren.
ceedings were illegal and void, as in this Rule discharged.
case they are claimed to be, neither the TAXES.
land nor the owner would be in danger of CONNECTICUT SUPREME COURT OF any such injury as that the extraördinary ERRORS.
powers of a court of equity need be inSamuel S. Rowland and others v. The
voked for protection. First School District of Weston. Decided January, 1857.
We can give no countedance to the arguA Court of Equity will not interfere 'ment of the plaintiff's counsel impugning
the authority of Dodd v. City of ijartford. issue upon the trial was whether the asWe think that case was correctly decided, signment of the judgment was to be made and we regard the principles enunciated in after the payment of the first note or on the it to be sound and salutary. If the plain. ayment of both. tiff is correct in his claim if the proceed. It appeared, however, on the trial that ings of the defendants are wholly unwar- subsequent to the maturity of the note in ranted by la v, the injury impending is in suit it was transferred to plaintiff, and the no sense irreparable, and there is ample judgment assigned to him also. There was remedy in the courts of law. On the other no offer by plaintiff to assign the judgment hand, should the plaintiff be mistaken, and at any time made, and when, upon the close should it finally appear that this tax bas of the case, the Judge was requested to been duly and legally imposed, surely no charge that the plaintiff could not recover court of equity should interfere. We dis- without such an offer, the request was recover, therefore, no sufficient grounds on fused and an exception taken to the ruling which to rest the exercise of the extreme, thus made though sometimes necessary, power of a
Henry Daily, for respt. court of chancery to stay proceedings by
D. M. Potter, for applt. injunction. (Hine v. Stephens, 33 Conn 505; Munson v. Munson, 28 Conn. 582;
Held, That the consideration - he wbole Sheldon v. Centre School District, 25 consideration-of both notes was the assign. Conn. 224.)
ment of the judgment. Assumin., thero.
fore, that the plaintiff's assignor bad the There is no error in the judgment below,
right to assign the judgment, alıbough it deprived bim of the power to perform bis
agreement with the defendant, and that the TENDER.
plaintiff is in all respects his representative
or succeeds to his rights and obligations, SUPREME COURT-GENERAL TERM.
it is quite clear that the defendant was enFIRST DEPT.
titled to the assignment of the judgment, or Frederick L. Berringer, respt, v. Louis an offer to assign it, before any judgment Wengenroth, applt.
could be obtained against him. (Lister v. Decided January 28, 1876.
Jewett, 11 N. Y. 456.) If either party
would sue upon this agrcement, the plainIn an action upon the second of tro tiff for not paying or the defendant for not
notes, given upon consideration of transferring, the one must aver or prove a the assignment of a judgment by the transfer and the other a payment or a tenparty receiving the notes, such as- der. (Payne v. Lansing, 2 Wen. 525.) signment to be made upon the pay The acts would, under the agreement, ment of the notes, an offer to assign assuming it to be as claimed by the plain. must be shown before a recovery can tiff's assignor, be necessarily concurrent or be had.
simultaneous— he defendant's readiness to Appeal from a judgment on the verdict pay and the plaintiff's readiness to deliver of a jury.
the assignment. In this case the plaintiff sought to recover
The plaintiff sbould not have recovered upon one of two notes given by the defend- without proving an offer to assign the judg. ant to George Fuiling, the consideration ment. for which was the assignment of a judgment
Judgment reversed. held by him against one W., defendant's Opinion by Brady, J.; Davis, P. J., brother. The firsi note was paid. The' and Daniels, J., concurring.
TOWN BONDS. REMEDY OF
levy and impose a tax for the payment of said bonds. The bonds were issued as required by the statuie.
N. Y. COURT OF APPEALS.
Defendant insisted that plaintiff's rem
edy was by mandamus, not by action. Marsh, respt., vs. Town of Little Valle y applts.
Cary & Jewell, for respts. Decided February 1, 1876.
Henderson & Wentworth, for applts.
Held. That the town is obliged to proA town is obliged to provide for the vide for the payment of the bonds, and payment of bonds issued by them.
that the amounts secured by them are not
in the nature of unliquidated demands, If a town fails to pay its bonds, an which are required to be audited by the
action will lie against them, and it proper officers, but upon their face are adjudgment is obtained, the board of mitted debts, and, in the hands of bona supervisors are to assess, ievy, collect fide holders, lawful demands against the and
pay the same as other contin- town, and upon a failure of the officer of the gent charges.
town to pay the bonds an action will lie
against the town, which is a body corpo When a party has a legal remedy, by rate, capable of being sold (1 K. S., 337,
action, against a town, a mandamus $ 12; 1 R. S, 473, § 95), and, if judgment will not lie.
is obtained, it becomes a town charge,
which is to be laid before the Board of The repeal of the act under which town Supervisor , an:l the amount assessed, leslonds have been issued, does not affect tingent charges against the town (4 Lans.
ied and collected, the same a: other con. the bends already issued, and the
409; 5 id., 267; 2 T. & C., 108). holders have a vesteld right to collect them that cannot be impaired.
Also Held, That as plaintiff had a clear This action was brought upon three legal remedy by action against the town, towr. bunds purporting to have been N. Y., 9; 49 Barb., 264).
a mandamus would not lie (2 Hill, 45; 46 issued in pursuance of chapter 590, Laws of 1869, which legalized the acts and proceedings of the electors at a special town
Also Held, That the repeal of the act meeting, in the town of Little Valley. under which the bonds were issued (Chap. Cattaraugus Co., which had previously 590, Laws 1869) by Chap. 21, Laws of been held for the purpose of raising 1873 could not affect the bonds already money to pay bounties for furnishing sub-issued, and the holders have a vested right stitutes, and authorized the board of town to collect them, and this right could not auditors to audit such claims, and author- be impaired by any subsequent modificaizing the issue of town bonds to each tion of the statlite. person furnishing a substitute as therein provided. The fourth section of the act Judgment of General Term affirming declared that said bonds should be legal judgment for plaintiff at Circuit af. claims against the town, and the fifth firmed. scction made it the duty of the board of supervisors, at any annual meeting, to
Opinion by Miller, J.
NEW YORK WEEKLY DIGEST. ants, and order denying new trial af
Per curiam opinion.
CONFLICT OF LAWS. WILL FOR
EIGN JUDGMENT. Miller, app't. v. Irish, et al, respt.
N. Y. COURT OF APPEALS. Decided January 18th, 1876. In an action against the vendor to re Rice, exr., &c., respt., v. Harbeson et al.,
cover brokerage on a sale of real es- applts. tate, evidence that plaintiff was act Decided January 18, 1876. ing in the interests of the buyer is Where a conflict arises between the laws admissible.
of two State3 as to the distribution of This action was brought to recover, for of personal property, the law of the services of plaintiff, as broker in selling State where the property is situated certain real estate for the defendants, and must control. as attorney in reference to the sale. The The judgment of another State affectcomplaint alleged that in the two capaci ing the distribution of the personal ties plaintiff did a series of acts for the property of a deceased citizen of this defendants, at their instance, and for all
State, is of no effect as against the of these acts plaintiff demanded payment where a will divides the whole of tes.
decree of a court of this state. of a certain percentage of the purchase
tator's property into certain portions, money of the property sold.
but was not properly executed as a Upon the trial evidence was given tend will of real estate, and the heirs at ing to show that plaintiff was acting in law recover the realty, they must rethe interest of the buyers; this was ob sort in the first instance to that to jected to by plaintiff on the ground that it pay a mortgage upon it, but any de related to occurrences after the comple
ficiency wiú be paid from the pertion of his contract as broker. The objec
sonalty. Gjon was overruled.
This was an appeal from an order of the
General Term reversing that part of a de. W. C. Burlon, for app't.
cree of the Surrogate upon final accounting, John Gaul, Jr., for resp't.
which directed that a mortgage upon cerHeld. No error; that the complaint set tain property belonging to plaintiff's testaup one continuous service, and that the tor in South Carolina be paid out of the extent of plaintiff's employment, the value personalty. It appeared that plaintiff's tes. of the services, having been put in issue, tator was a citizen of this State, and that he the evidence was admissible.
died leaving personal property here and Defendant also offered to prove an offer real estate in South Carolina, which was to pay plaintiff for drawing the contract, mortgaged. By his will he directed that and other papers. This evidence was re- his property should be divided, after the ceived under objection.
payment of debts and certain specific lega. Held. No error; that it being a part cies, into seven shares, payable to the lega. of the transaction between the parties, it tees named. The will was proved in this was proper; that it did not harm plaintiffs, State and in South Carolina, but in the lator have the effect to deprive him of a re- ter State only as a will of personal estate, covery of his compensation for drawing it not being properly executed as a will of the papers.
real estate under the laws of that State. Judgment of General Term, affirming The heirs, in a suit in South Carolina, rejudgment entered on verdict for defend- covered the real estate and obtained a de
cree that the mortgage should be paid by CONSTITUTIONAL LAW. TAXA. the executor under the will out of the per
TION. sonal property. A citation was served upon the holder of the mortgage to appear on the N. Y. COURT OF APPEALS. final accounting, and he appeared and filed his claim. The plain import of the will
Weismer, app'lt., v. The Village of was that the property should be converted Douglas, respts. into money
and divided into seven equal shares. If the mortgage should be paid as
Decided February 1, 1876. directed by the Surrogate's decree out of the legislature has no power to author the personalty, the bequests in the will
ize a municipal corporation to take would be defeated. The recipients of six stock in a private corporation, and of the shares under the will would receive to issue its bonds in payment therelittle or nothing, while the heirs at law,
of who, by the will, received but one share, The legislature cannet impose, or delewould take nearly the whole estate. The gate, to a municipal corporation, testator did not own the land in South Ca. power to impose a tax for a private rolina when his will was executed.
purpose. Malcolm Campbell, for applts.
The fact that interest has been paid Richard O'Gorman, for respt.
and that a special tax voted to meet
the future interest upon void bonds, Held, That to prevent the intent of the
does not estop a municipal corporutestator being defeated, the land in South
tion from denying the validity of the Carolina should be charged with the pay bonds. ment of the mortgage, and in the absence of evidence that it was insufficient, or that
This action was brought to recover the there was any difficulty in obtaining a full amount due on certain bonds issued by
defendant under the provisions of chapter indemnity, the holder of the mortgage was properly required to resort thereto, and 837, Laws of 1867, which authorized
defendant, with the consent of payment of the mortgage out of the personal property properly refused. That the judg- majority of its taxpayers, representing a ment in South Carolina could not contri, majority of the taxable property, to isstle but there being a conflict between the laws and negotiate its bonds, and with the of the two States the lex fori must prevail. moneys realized therefrom to subscribe As the personal property was not within for and take shares of the capital stock of the State of South Carolina, or subject to
a manufacturing cor oration located in its jurisdiction, it was proper for the courts
said village, and provided for taxation to of this State to adjudge in reference there. met the principal and interest of said
bonds. The corporation was organized to, although such judgment affects real estate situate in South Carolina,
under the general manu!acturing laws, to In case there should be a deficiency upon and to manufacture lumber, &c. By an
construct and improve a water privilege, a foreclosure of the mortgage and sale of
act of the legislature (chap. $37, Lars of the mortgaged premises, the holder of the
1867) it was authorized to purchase and mortgage would still be entitled to resort take title to land flowed thereby. to the personal estate to collect the defi. ciency.
D. D. Niles, for applt. Judgment affirmed.
W. J. Welsh for respt. Opinion by Miller, J.
Held, That the legislature had not power to authorize the defendant to take