« ForrigeFortsett »
and it should be regarded as part of the the time the voyage should be stopped, res-gesta in which he was engaged. in consequence of ice or of the closing
That with reference to the amount of of navigation making a complet on of loss plaintiffs gave the best evidence in the voyage impossible, allowing three their power in relation to the quantity days for a discharge of the cargo. It of goods on hand at the time of the appeared that the boat proceeded on tire and the amount destroyed. If there her voyage and reached the village of was any error in allowing the use of D. on the evening of November 28th the copy memorandum to refresh the or 30th (the evidence was conflicting as witness: memory, that was abundant- to which date). She was leaking badly ly cured by the production of the orig- and was put on a dry dock. On the inai, and the repetition of the eviderice, next morning tbe jeak stopped, and as the memory of the witness was re- about 3 or 4 o'clock, P. M., she was freshed by that document.
taken off. When she went or the dry As no substantial error was commit- dock there was no ice. Ice formed on ted upon the trial, the judgment should the 1st or 20 of December several inches be affirmed.
thick. It was agreed between the capOpinion by Davis, P. J.; Daniels, tain of the boat and defendant's agent J., concurring
that a passage should be cut to get the boat down to a warehouse about 60 rods
down the canal where she could be unMARINE INSURANCE. loaded. A channel was cut 20 feet wide, N. Y. COURT OF APPEALS.
and the boat started, but on the way Sherwood et al., exrs., &c., respts. v.
she was struck by something, what it The Merchants Mutual Insurance Com. did not appear, a hole knocked in the
bow and she sank. pany, applt.
The judge directed a verdict for the Decided May 30, 1876.
defendant. iThere a policy of marine insurance,
Geo. B. Hibbard, for applt. by its terms, provides that the risk is
Jno. II. W?ite, for respts. to terminate at the place and at the time the voyage shall be stoppeil, in Held, error. That the case should consequence of ice or the closing of have been submitted to a jury. navigation making a completion of the voyage impossible, and allows Also held, That under the conditions three days for a discharge of the car of the policy the actual stoppage of the go, the insured has the right to make voyage was the time from which the every effort to continue the voyage, three days for discharging of cargo were after stoppage, to a proper place to discharge the cargo and lay up the to be completed, and the insured had boat for the winter, notwithstanding the right to make every effort to conit is apparent it could not be finish-tinue the voyage, notwithstanding it cil by reason of obstruction by ice. shonld be apparent that by reason of
This was an action to recover on a ice it could not be finished. He had policy of insurance upon certain prop- also a right to continue the voyage noterty on a canal boat.
withstanding obstructions by ice, to a By the terms of the policy the risk proper place to discharge the cargo a:d was to terminate at the place and at Ilay up the boat for winter.
Judgment of General Term revers- fell, and sustained the injury complaining order of Special Term denying a ed of. There was evidence tending to motion for new trial affirmed, and judg ;show that the sidewalk at this point was ment absolute on stipulation for plain. unsafe and insecure for persons passing tifl'.
over it, if their attention was not parOpinion by Allen, J.
ticularly called to it, that it had been suffered to remain in this condition for
several years, and that casualties similar SUBMISSION OF FACTS TO JU
to that which befell plaintiff had hapRY. PRACTICE.
pened ou more than one occasion. N. Y. COURT OF APPEALS.
Plaintiff was nonsuited on the ground Clemence, respt., v. The City of Au- that the Common Council in the perburn, upplt.
formance of a "quasi judicial” act had Decided June 6, 1876.
established the grade, and that the sideIn an action to recover damages for an waik had been built in accordance
injury sustained by falling on a side with that grade, and the jury could not walk, the questions whether the side, review the "judicial action” of the walk was in an unsafe condition, and Common Council, who had a discretion whether the injury was caused soiely thereby, or whether negligence or
in the matter, and that the city could want of care on the part of plaintif not be held liable for the mistaken excontributed to it, should be submitted ercise of that discretion. to the jury.
N. C. Mouk, for applt. Where a party has been nonsuited, he F. D. Wright, for respt.
may insist, upon appeal, not only that the judge erred in his applica
Held, error; that the case should tion of the law to the facts, but that have been submitted to the jury to dehe erred in his conclusions of fact, or termine whether the sidewalk was in that there were disputed questions of proper repair and in a safe condition, fact that should have been submitted and whether the injury to plaintiff was to the jury.
caused solely by sich de!ect, or whether This action was brought by plaintiff his own negligence and want of care against the City of Auburn to recove: contributed to it. That no question damages for an injury sustained by fall- con!d be made as to the liability of the ing on the sidewalk in said city. It ap-! city for neglect of duty if the walk was peared that the Common Conncil of in fact in an usale condition, and Auburn establis: ed a grade for a por- whether it was in such a condition was, tion of the sidewalk in one of the streets, upon the evidence, a proper question but where the new and old sidewalk for the jury. joined there was a difference of several
Wherè party is nonsuited upon the inches. By direction of one of the motion of his adversary, over his obmembers of the Common Council the jection and exception, he may insist stone joining the new with the old side
upon a review of the decision, not only walk for a space of about four feet was that the judge at Circuit erred in the laid at a grade and angle much sharper application of the law to the facts, as than that on either side. Plaintiff, reviewed by him, but that he erred in when this place was covered with about his conclusions of fact, or that there an inch of snow, slipped thereon and I were disputed questions of fact which
To set aside a conveyance for fraud, ab.
should have been submitted to the en to the wife for safe keeping. She jury.
kept the same till 1864, when 100 acres Order of General Term, granting a was purchased and most of the $600 new trial, affirmed, and judgment abso- was paid thereon and a conveyance of lute for plaintiff, on stipulation. the new land was made to the husband, Opinion by Allen, J.
and the husband gave his bond and
mortgage for the same. CREDITORS' BILL.
In 1867 the last mentioned land was N. Y. SUPREME COURT. GENERAL TERM. sold, and with the proceeds the land in FOURTH DEPARTMENT.
suit was purchased and the husband
took a deed in his own name and gave Ford, respt. v. Johnston, applt.
back a bond and mortgage, &c., &c. Decided April, 1876.
In August, 1869 the plaintiff was assolute, positive evidence of fraud is not necessary; the fraud may be in the husband), and in May, 1870, plainferred from all the facts.
tiff' recovered judgment against defendA conveyance made pending an action ant Richard N., for damages for the asfor tort against the grantor with insault, and execution was issued and re. tent to defeat a recovery is fraudu- turned unsatisfied.
lent and void. The fact that premises from the pro
About twelve days after the assault ceeds of the sule of which this prop- on plaintiff, defendant conveyed the crty in suit was brought was declared premises to his son, and the son there. a homestead, &c., did not exempt this upon conveyed the same to the wife, land.
Cordelia, and on the trial evidence of Appeal from judgment at circuit.
defendant's statements was given that The defendant, R. N. Johnston and he had put property out of his hands Cordelia Johnston are husband and wife. to provide against suit. They were married prior to 1847, and in
Plaintiff brings this action in the nathat year Cordelia received from her
ture of a creditor's bill to set aside father about $150, with which sone conveyance to Cordelia and have his land was purchased, and the land was judgment declared a lien, &c. under the Ilomestead Law declar, d a
The value of the property so convey. Homestead and recorded as such.
ed to Cordelia was $3,000, and the court The husband occupied and improved below held that Cordelia was only enthis laud; built thereon a house and titled to an equitable interest in the barn, and paid up the mortgage.
. land for her $150 and use of the same, In 1856, the said land was sold and and set aside the deed, and from that conveyed tor $1100, and in 1857 100 judyment this appeal is taken. acres of land was purchased for $2,100,
There was no consideration for the and the means realized from the sale of deed from Richard N. to his son the first land was paid towards the $2, from Cordelia to the son, The action 100.
The husband took a deed to this for the assault was commenced before land in his own name, and gave a bond
the conveyance. and mortgage back.
Walter L. Sessions, for respt. In 1863 fifty acres of the land was sold for $1,600, and the money was giv
Norris & Russe!l, for applt.
Held, That plaintiff's judgment hav- for the amount of the check on the ing been recovered after the convey- Union National Bank of Chicago. This ance by Richard N., he was bound to diaft was received on the 9th by plainshow actual frand. The evidence to tiffs, and deposited in the Bank of Monestablish fraud need not be absolutely treal, in Chicago, for collection. The positive; the frand may be inferred draft was presented to the Union Nationfrom the facts in the case.
al Bank for payment on the morning of The conveyance having been made the 10th, and not paid, whereupon pending an action for a tort and with plaintiff's notified the Bank of New Lisevidence of an intent that it was done bon that the check would go to protest to defeat a recovery is fraudulent and if not paid by Monday, the 12th. Not void.
being paid at that time it was duly proThe plaintiff's recovery is not affect- tested. ed by the fact that the proceeds of the The Bank of New Lisbon could have property declared a homestead was put paid the check in money at any time into property in suit. The husband's up to the 10th, but at the close of busimoney and labor was after this spent on ness on that day it stopped payment. this property.
At the time of sending the draft it had Judgment affirmed.
no money at the Union National Bank, Opinion by Noxon, J.
nor authority to draw it without funds.
Held, That in these days, when such BANK CHECKS. RIGHTS AND facilities are furnished by the express
DUTIES OF HOLDERS. co!! panies for presentation at distant U. S. Circuit Court-WESTERN Dis- places, there is no reason for adopting a TRICT OF WISCONSIN.
less direct or effective mode to accom
plish the object; that if the plaintiff's Farwell et al., v. Curtis.
had sent the check by express on the The holder of a bank check must pre- last train on the 6th, they would have
sent and collect it the same day, he is chargeable with laches.
received the money on the 8th, and He canot extend the time for which that, under these circumstances, to send the drawer is liable.
by mail to the drawees, with instrucThis was an action to recover the price tions to collect and return, is hardly of goods sold to defendant in 1875.
equivalent to a demand at the counter Defence, payment.
for payment; and that as plaintiffs On the 5th day of April, 1875, de adopted another course than the one
which the exercise of ordinary care and fendant, a resident of New Lisbon, purchased goods of plaintiff's, in Chicago, diligence would have dictated, they and gave a check for $800, on the Bank should stand the loss which has resulted of New Lisbon, in payment. Plaintiffs from it. on the same day sent the check by mail
Also held, That plaintiffs were guilty to the Bank of New Lisbon for collec- of laches in not presenting the draft for tion. Said bank received the check on payment before the 10th. The rule of the morning of the 7th, paid the check commercial law is that in cases where out of defendant's funds on deposit, the parties all reside in the same place, and sent a draft, by mail, to plaintiff's the check must be presented for pay
ment before the close of business on the tempt of court in selling the properday following its date or delivery to ty of the bankrupt under a decree of the payee; and in cases where it is the State Court for the foreclosure of
the mortgage, which was entered bé. drawn upon a bank at another place, it
fore the arljudication of bankruptcy, must be sent, by the farthest, by the
nor in entering a judgment for delast mail on the next day after its re ficiency on such sale. ceipt, and be presented by the party re This was a proceeding in involuntary ceiving it on the day following its re- bankruptcy to punish one Dingee for ceipt by him.
20 Wend. 192; Story contempt of court in violating an inon Promissory Notes, 493.
junction. It was claimed that plaintiffs had time to present the dratt, to see whethi- the 5th of February, 1876, and an ord
The creditors' petition was filed on er it would be paid, and th it if not
er to show cause issued returnable the paid, they could then protest the check. lleld, That this is not the law. The
12th of February. At the same time holder of a check cannot in that way of the Revised Statutes that an injunc
an order was made under section 5:*24 extend the time for which the drawer tion issue to restrain the debtors and would be liable. The drawer had a right to have his check paid on the day til the hearing and decision of said pe:
one Dingee “in the meantime, and unpresented, and it was the duty of the holder to see that it was so paid, or, if tition, and until the further order of
this court, from levying upon or maknot, protested ; and if the holder had accepted it in lieu of money, he must
ing any transfer or disposition of the
property cf the debtors, not exeinpted present and collect it the same day, or
by the bankruptcy act from the operabe chargable with laches. Ile cannot, tion thereof, and from all interference as in this case, keep it for three days, therewith, except to preserve the and look to the drawer for payment, as by so doing he would extend the draw- same," and on the same day an injunc
tion to that effect was issued. The order's liability beyond the time fixed by
er to show cause not having been law. 7 M. & G. 1061; 43 N. Y. 171.
served, a new one was issued returnaJudgment for defendant.
ble the 19th of February. The injuncOpinion by Ilopkins, J.
tion was served on Dingee on the 14th BANKRUPTCY. CONTEMPT OF cation was made and an assignee ap
of February. On the 19th an adjudi. COURT.
pointed. U. S. DISTRICT COURT, S. D, OF N. Y.
Dingee, prior to the service of the In the matter of Mary Irving and injunction, had commenced foreclosing Benjamin Irving, bankrupts.
two mortgages held by him on property Decided June 21, 1876.
owned by Mary Irving, ovie of the bank. The filing of a petition in involuntary rupts, in the Supreme Court of the bankruptcy will not divest a State State of New York. Court of jurisdiction over an action
On the 12th of February a decree of pending in such court for the fore, foreclosure and sale was entered in the closure of a mortgage on property belonging to the bankrupt.
action of foreclosure, and on or about The mortyagor is not guilty of con- the Sth of March, subsequent to the