debtors or between principal and solvent debtor and his assignees which gurety or an insolvent' debtor and his will make a payment by one evidence assignees which will make a payment of an acknowledgement of the debt by by one evidence of an acknowledge

, the other so as to revive it. 2 Comst., ment of the debt by the others so as to revive it.

523 ; 1 Kern., 176; 18 N. Y., 558; 34 The delivery of notes in part payment Id., 175. perates only as of the day of deliv.

Whipple v. Blackington, 97 Mass., ery to take the case out of the statute. 476, distinguished.

This action was to recover a balance Order of General Term, reversing of an account for goods sold, &c., for judgment of Special Term for plainwhich defendant was indebted April tift, affirmed. 10, 1868. The defense was the statute

Opinion by Allen, J. of limitations. On April 14, 1868, defendant indorsed and delivered to the

ARREST. plaintiffs two notes for $590 each, made N. Y. SUPREME Court. GENERAL TERM. by B. & G., dated April 6, 1868, and

FIRST DEPARTMENT. payable in two and five months, with

The Meriden Malleable Iron Cominterest. The notes were secured by a chattel mortgage made to defendant, pany, respt. v. Charles J. Baudman, which he assigned to plaintiff's. The to sustain an order of arrest the affi

Decided July 6, 1876. notes were paid upon their maturity to

davit upon which it is foundled must plaintiff's' firm, and were credited to

set forth the facts upon which the defendant's account on their books, conclusions are based. $500 on June 9, 1868, and $500 Sept. Appeal from order denying motion 17, 1868. This action was commenced to discharge order of arrest. June 5, 1874.

The motion was made upon the as. Samuel Iland, for applt.

sumed insufficiency of the affidavit on Jas. B. Lockwood, for respt.

which the order of arrest was granted. Held, That the delivery of the notes The allegations in relation to the fraud to ;-laintiff operated only as of the day

are as follows: of their delivery to take the case out of

“ That prior to the 6th day of March, the statute of limitations. 3 B. d Ad., 1875, this defendant applied to this de 507.

ponent as an officer of the plaintiff, to That the payments of the notes by furnish him. certain goods, and as an inthe makers at their maturity did not ducement to the plaintiff

' to sell the said operate as an acknowledgement of the goods, well knowing the representaresidue of the account, as they were tions to be false and untrue, and, that not the authorized agents of detend- he was insolvent and utterly unable to aut. 53 N. Y., 442; 2 Lans., 120; 49 pay his debts, represented falsely and N. Y., 155; 7 Wend., 408; 20 Me., fraudulently that he was the owner, in 315; 5 Pick., 54. No such acknowl- his own right, of real estate worth edgment or promise by defendant could $50,000, clear and unencumbered, exbe implied therefrom.

cepting to the extent of five thousand Also hell, That there is no agency

Gollars. as between several joint debtors or be “That said plaintiff sold said goods tween principal and surety, or an in upon the faith of said representations,

and believing the same to be true and from the company's office at Independrelying thereon.

ence, where the goods were to be de“ That this deponent has only recent. livered to him. They reached Indely learned that said representations are pendence on the 4th and 7th of Janufalse and untrue."

ary, 1872, and notice was immediately L. Loften Kellogg, for respt.

thereafter given by mail as per special J. llenry McCarthy, for applt. agreement. The notice contained the

Neld, The aftidavit is defective be following clause : cause the facts are not set forth on

The contract of this company as which the conclusions stated in it are

common carriers ends upon the arrival founded, and which form the basis of of goods at our depots.the proceeding. In other words the

This notice did not reach defendant affidavit contains recitals in effect and until the 20th of January. The fire not facts in detail.

took place on the 15th.

It was claimed that a common carOrder appealed from reversed, with $10 costs and disbursements to abide rier is relieved of its extraordinary lia

bility as an insurer when it has carried event. Opinion by Brady, J.

the goods intrusted to it safely and deposited them in a safe warehouse.

Held, That the company's liability as COMMON CARRIERS. LIABILI carrier bad terminated before the TY.

fire, and that therefore it was not reSUPREME COURT OF KANSAS.

sponsible for the destruction of the Leavenworth, Lawrence and Galves- goods; that the carrier's liability conton R. R., pitf. in error v. Maris, deft. tinnes until the consignee has bad a in error,

reasonable time to call for, examine, A carrior's liability continues until the and remove the goods; but that such

consignee has hail a reasonable time reasonable time is not a time varying to call for, examine, and remove the with the distance, convenience, or ne

goods. A reasonable time is such as would en

cessities of the consignee, but is such able one living in the vicinity, in the time as will enable one living in the ordinary course of business, and in vicinity of the place of delivery, in the the usual hours of business, to in- ordinary course of business, and in the spect and remove them.

usual hours of business, to inspect and Where it is agreed that notice of arri- remove the goods. 18 Minn. 133. val shall be given the consignee, the reasonable time runs from the late

It was insisted, however, that notice of receipt of such notice, unless it was required of their arrival, and that contains a stipulation that the liabil- no notice was received until after their ity of the carrier shall cease on the destruction. arrival of the goods.

lield, That whether independent of This was an action brought by de- the contract any notice was requisite, fendant in error to recover for goods may be doubted. See 34 N. Y. 497; destroyed by fire in a depot belonging 4+ N. Y. 5115; 3 N. Y. 322; 42 III. to plaintiff ' in error.

133 ; 18 Minn. 133; 16 Mich. 79, and Detendant in error was a merchant | 6 Jones (Law), 313. That in those at Wintield, a plave about ninety miles States where notice is required to ter

minate the carrier's liability, the rea- charge defendants with a debt (money sonable tiine dates from the giving ot loaned) allowed to be due by the New the notice, but in the present case the York Company to the California Bank, form of notice used by the company at- because they as such trustees did not tempts to limit the effect thereof, and cause to be filed the report of the conplainly states that the company's liabil- dition of said mining company as reity as carrier is to terminate upon the quired by 12th section of the act under arrival of the goods, and the defendant which said mining company was organin error had knowledge of this by the ized. The answer put in issue the receipt of other similar notices. !

existence of the plaintiff as a corporaJudgment reversed, and case remand- tion. ed with instructions to enter judgment

At the trial of the issues, the plaintiff, in favor of plaintiff in error.

in order to prove its existence as a Opinion by Brewer, J.

banking corporation, introduced a gen

eral statute of California, passed in INCORPORATION.

1853, which provided that “ Corpora

tions for manufacturing, mining, meN. Y. SUPREME COURT. GENERAL TERM, chanical or chemical purposes, or for FIRST DEPARTMENT.

the purpose of engaging in any species The Bank of California, applt., v. of trade or commerce, foreign or doDavid J. Grath and others, respts. mestic, may be formed according to the Decided May 1, 1876.

provisions of this act," then follows An act of the Legislature providing provisions for the formation of corpo. for the formation of corporations for rations under the act by filing certifi manufacturing, mining, mechanical cate, &c. or chemical purposes, or for the pur The certificate under which plaintiff pose of engaging in any species of claimed to be incorporated, filed under trile or commerce, foreign or domestic, does not permit the incor po

the act aforesaid, May 12, 1864, was ration under it of a banking corpo- introduced, and stated the objects for ration.

which the company is formed are to In an action brought by one corpora- engage in and carry out the business of

tion against trustees of another cor- banking to such extent, and in all such poration to recover by way of penalty for failing to file a certificate of the branches as may be legally done under condition of such company, a debt the constitution and laws of the State incurred by the corporation of which of California, and it contains no other the defendants were trustees, lefenil- provision as to the objects of the organants may contest plaintiff's incorpo- ization of such corporation. ration.

Plaintiff relying upon this evidence This action is brought by the plain- to establish its existence as a corporatiff, alleging itself to be a banking cor- tion, defendants moved to dismiss the poration organized under and by virtue complaint on the ground “that a bankof the laws of California, against ing corporation could not be created certain trustees of La Abra Silver under said act of the Legislature of Mining Company, a corporation or the State of California of 1853, and ganized under the general mining laws that said act and said certificate of of the State of New York, seeking to incorporation did not create the plain

tiff a corporation for carrying on The defendants

were not dealers the business of banking or at all.” The with the plaintiff. They were not motion was granted. Exceptions di- therefore shown to be estopped from rected to be heard in the first instan:e denying the existence of the corporaat the General Terın and judgment tion. They were clearly at liberty to meantime suspended.

contest the validity of plaintiff's corOn the argument of the appeal it porate existence. was urged by the appellant, that when Motion for new trial



excepthe court directed a non-suit, the aptions denied, and judgment directed for pellant was in the midst of its evi- the defendants with costs. dence, and non-constat but it would Opinion by Davis, P. J.; Brady have given other and additional proof ani Daniels, JJ., concurring. of its incorporation. Thos. L. Snead, for applt.

APPEAL. Britton & Ely, for respts.

N. Y. SUPREME COURT. GENERAL TERM. Held, That there was no error in the

FIRST DEPARTMENT. direction of the court dismissing the

Minnie Hauck, applt., v. Samuel complaint. That with reference to the point now

Craighead et al. as executors, &c., and made on the part of the plaintiff that Lafayette Harrison, defts. when the court directed a non-suit, the

Decided July 6, 1876. plaintiff was in the midst of its evi-No appeal being taken from an order dence, non-constat but it would have

in behalf of plaintiff amending the

complaint upon the trial, the defendgiven other and additional proof of its

ant being successful, it stands intact incorporation, that point should have

as a part of the case, with all the been suggested to the court below. benefit to the plaintiff to be derived There is nothing in the case to indicate therefrom. any such suggestion, and we must as. Evidence is admissible to show how a sume from what does appear that when person came to sign a contract in an

unusual place or what his relations the defendant raised the question of the

were to the contract. validity of the incorporation it was sub- Where there is a conflict in the evistantially conceded that the plaintiff

' (lence upon a materiul issue in the had exhausted its proof on that subject, case, the court must submit the

ques and that the transaction for which the

tion to the jury. action was brought was in fact the This action was commenced by the loaning of money by the plaintiff as a present plaintiff by her guardian, but bank in the exercise of banking powers. subsequently she becoming of age,

the That the attempt to create, under the action was continued in her own name. act referred to, a banking corporation Sannuel N. Pike, one of the original having the powers expressed in the defendants, died since its commencecertificate, was of no legal force, and ment, and his executors have been subthat the plaintiff cannot maintain this stituted in his stead. action based upon a transaction which

Its object is to enforce the liability was, as the complaint substantially shows, an exercise of its usurped bank of the original defendants, Harrison ing powers.

and Pike, on a contract purporting on


its face to be made between the plain- and exception showing the occurrences tiff and the defendant Harrison only, and conversation which took place at but upon the margin of which Pike the execution of the contract by Pike, to affixed his name. The following is a the effect that plaintiff would not make copy of the contract.

a contract alone with Mr. Harrison, “ Memorandum of an agreement made and plaintiff's father told Mr. Pike this day, February 18, 1868, between that unless he would join in and become Lafayette Harrison and Miss Minnie responsible for the contract, plaintiff Hauck, as follows:

would not make a contract, and Mr. “ Miss M. H. engages herself as pri- Pike said the contract shonld be made ma donna asoleta, for operas and con- and he would come to her wishes, and certs, for the term of two months from he signed his name to the contract. the 24th of February, 1868.

At the trial, the complaint was dis“Miss Minnie Ilauck obliges herself inissed upon the evidence as to the repto contorm to all the rules and regula- resentations of Pike, upon the ground tions of the theatre.

that the contract as made by Pike was “Mr. Harrison obliges himself to made by him as guarantor, and that a pay Miss Minnie Hauck the sum of principal and surety liable upon sepafourteen hundred dollars per month. rate instruments cannot be joined in

"L. F, HARRISON. one action, on the authority of 10th "It is also understood and agreed Barb., 638. that Miss Hauck shall sing at least G. D. N. Baldwin, for applt. three (3) times in each week, all

A. C. Fransiola, for respt. extra performances to be paid at the Held, That the defendant not having rate of one hundred ($100) per per-appealed from the order on the trial formance.

amending the complaint, it stands intact “It is also agreed that the salary to be considered as part of the case shall be paid in each and every week.”' with all the benefit to the plaintiff to

The cause of action as set forth in be derived therefrom because the dethe complaint against the executors of fendant succeeded. Pike, at the commencement of the trial, The evidence given upon the trial as was in form on his guarantee for the to the conversations and occurrences at performance of the agreement on the the time of the execution of the conpart of the defendant Harrison which tract by Pike was not to vary or conthe latter made with the plaintiff. tradict the agreement, but to show only

On the trial the court allowed an why it was that he signed the paper amendment of the complaint which where he did and in that way to show changed the cause of action and charged what he meant to assume—what, in the decedent, Pike, as an original other words, was his relation to the joint contractor or promissor and ren-contract. dered it necessary for the plaintiff to Held further, That it is quite clear establish by competent proof that su: h that the decedent meant to be bound in was his relation to her.

relation to Harrison's contract, and if After the amendment evidence was the plaintiff could regard him as an allowed on the trial under objection original contractor or guarantor, the

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