is the subject of controversy. George W. signee of a debt, to establish that the McClure was the source of title, common

debtor was notified of the assignto plaintiffs and defendant. McClure bad ment in order to protect himself made a mortgage on the lots to defei.d àgainst payment to the assignor. ants in error, to secure payment of the

This action was brought by plaintiff as eum of $18,000.

trustee of the estate of F., under a deed of A suit to foreclose this mortgage was trust executed by F., to recover money instituted in the district court in 1868, loaned by F. to the defendant. The dewhich proceeded to a decree and sale, and fendant pleaded payment and gave eviplaintiffs became the purchasers, receiving dence showing payment to F. after the the master's deg which was du'y con- execution of the deed. Plaintiff's coun. firmed by the court.

sel, upon the trial, requested the Judge to This decree was rendered July 1, 1870. charge the jury that the burden of prof On the 9th day of May preceeding, the was upon the defendant, to show that the mortgagor, McClure, filed a petition in payment was made without notice of bankruptcy, and on the 11th day of May plaintiff's rights, and in good faith. This he was adjudged a bankrupt, and on the request was refused, and plaintiff ex4th day of June John Mechling was duly cepted, and also excepted to the charge on appointed assignee. The bankrupt filed this point, that the burden of procf was schedules in which these lots, and the upon him. mortgage of the Gaffs on them, were set A. Hadden for applt. out.

Geo. B. Bradley, for respt. Plaintiff in error was & tenant of Mc

Held, That the charge and the refusal Clure, and insists that all the proceedings to charge were correct; that defendunt in the forecloure suit, after the appoint- had a right to presume that the original ment of the assignee in bankruptcy, are creditor was entitled to receive payment, absolutely void, because he was not made and it was incumbent upon plaintiff to a defendant.

establish the fact of notice of the transfer. Hold, The Court below having acquired It devolves upon an assignee to establish jurisdiction of the parties and of the sub- that the debtor was notified, in order to ject matter, neither a sale by the mortga- protect himself, against a payment to the gor nor the vesting of the title in the as- assignor. 9 J. R., 64; 12 id., 343; 19 id., gignee by operation of the bankrupt law, 95; 1 Hill, 552; 2 Seld, 188.

could avoid the full effect of its final de Bush v. Lathrop, 22 N. Y., 550, distin


cree; that there is nothing in the bankrupt guished. act which places the title of the assignee Plaintiff's counsel also requested the upon a different footing in this respect Judge to charge, that the pendency of an from that of any other person taking action to set aside the trust deed between pendeule lite.

F. and plaintiff, of which defendant had Judgment affirmed.

knowledge, and on which he had been Opinion by Miller, J.

SwoIn & witness, was constructive notice to defendant, of the existence of

the deed. The Court refused so to charge. BURDEN OF PROOF.

Held, no error; that it was a question N. Y. COURT OF APPEALS.

of faet for the jury. Heermans, trastee, &c., applt. v. Ells Judgment of General Term, affirming worth, respt.

judgment for defendant at circuit, af. Decided February 8, 1876.

firmed. The burden of proof is upon an as Opinion by Miller, v.

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the supervisor's acts in accepting or U. S. SUPREME COURT.

rejecting the work as coming up to

these specifications. This Allen did in Gilbert Woodruff, et al, plffs. in error, v. his contract with them. The supervisors Benjamin F. Hough, et al., defts in error. reserved the right to decide as between Decided October Term, 1875.

them and Allen whether the work con. A contructor is liable to his sub-con- formed to the specifications.

Allen retractor for work done, although such served no such power in his contract with work

miny be rejected by the party defendants. These latter had a right, in vcho originally let the contract, there the event of a difference on that subject, veing nothing in the agreement be

to have the difference settled by a court of tween the contractor and sub-contractor, which makes the approval of law. and Allen run that risk if he rejected the work by the original party any of their work. But the supervisors necessary.

could reject work without such hazard, In error to the Circuit Court of the because Allen had agreed to submit to United States for the Northern District their judgment in case of such a difference. of Illinois.

Judgment affirmed. John Allen having contracted with the

Opinion by Miller, J. supervisors of the County of Winnebago, Illincis, for the building of a county jail,

COSTS. PRACTICE. made another contract with defendants in

N. Y. SUPREME COURT-GENERAL Tein, errir, who were plaintiffs below, for all the

Second DEPARTMENT. wrought-iron work necessary in the construction of the building. The plaintiffs

Growx, respt. v. McCrum, applt. here, who were defendants below, became Decided February 7, 1876. eu reties for Allen by a written guaranty A notice of appeal from a Justice's that he would perform his part of the

Court, where the recovery was over

one hundred dollars, to a County contract; that is, would pay as he had

Court, which states as ground of appromised these sub-contractors. In the progress of the work differences

pealthat the Justice erred in find

ing that plaintiff rendered services arose between Allen and his sub contrac

in a sum exceeding in value the sum tors, growing out of the refusal of the su

of twenty-five dollarx," is sufficient pervisors to accept the work furnished by to entitle the appealing party to costs the latter, on the ground that it was not

in the County Court, if recovery in compliance with the specifications of

therein is reduced more than ten doc. Allen's contract with the supervisors, and

lars. with the defendants in error. After much The plaintiff recovered a judgment for of the work was done and put in place, it $125, besides costs, in a Justice's Court, was condemned, and the work abandoned and the defendant appealed to the County by defendants in error, who brought this Court. suit against Allen's sureties for his failure The action was re-tried there and nato pay as they had guarantied he would sulted in a judgment for the plaintiff for

Hell, That Hough and Butler, the sub- $93. contractors under Allen, were not bound The defendant, in his notice of appeal by all Allen's contract with the super- to the County Court, stated the followvisors. But while they accepted specifica- ing, among other grounds of appeal. tions for the wrought-iron work which First, That the Justice erred in finding were in Allen's contract with the super- that the plaintiff rendered services for the visurs, they did not agree to be bound by defendant in a sum exceeding 'in value

the sum of twenty-five dollars.

logs. It appeared on the trial that deThe question is presented as to which fendants were the owners of the N. I party is entitled to costs.

of sec. 33, t. 21, N. r. 6 E, in this State; Roger H. Lyon, for applt.

that they contracted with one Sinith to H. B. Davis, for respt.

lumber on said land; that by mistake Held, The appellant's right to costs de- Smith cut the logs in question upon the pends upon his notice of appeal. He must south half of said section, caused the state in his notice in what particular or same to be hauled a distance of about five particulars he claims the judgment should miles to the Ausable river, thence run to hare been more favcrable to him. Sec. the boom at the mouth of said river, 371 of the Code.

there rafted and towed from thence to In this case the first particular ground Toledo in the State of Ohio, where they of appeal is that the Justice erred in find- were sold at twelve dollars per thousand ing a sum exceeding $25. This means feet. the judgment is for too much, and should It also appeared that when these logs only have been for $25.

were cut the south half of said section This threw upon respondent the neces- was owned by Eben B. Ward, and that he sity of making an offer to correct the afterward, and before suit brought, usjudgment in the amount, or to be liable signed all his claim and right of action for to pay costs if the judgment was reduced such cutting, to the plaintiff. $!0. No offer was made, and the judg The plaintiff ciaimed to recover the nient was so reduced.

price at wbich the timber was sold in The appellant was entitled to costs in Toledo. the Connty Court.

The Court charg'd the jury, that if Order reversed, with $10 costs, besides they found no wilful wrong on the part of disbursements.

the defendant, they might award as damOpinion by Barnard, J.

ages the value of the property where it was taken, viz: one dollar and fifty cents

per thousand, together with the profits, DAMAGES. INVOLUNTARY CON- which might have been derived from its VERSION.

value in the ordinary market. Or, that SUPREME COURT OF MICHIGAN. they might take the market value at To Winchester v. Craig et al.

ledo, deduct precisely the sum defendants Decided January Term, 1876.

expended in bringing it to that market,

and putting it in condition for sale, and The measure of damages in trover for award the difference between these two conversion by an involuntary tres.


with interest in either case from the passer, is the market value of the time the conversion took place; and reproperty at the point where it is sold fused to charge that the plaintiff would by the trespasser, less the expense of getting it there.

recover as damages the price for which

the logs were sold in Toledo. Where it is not sold, or the market value does not cover the expense, the

The finding of the jury, as appears measure is its value when first taken, from the printed record, was as follows: together with any profits that might “ The defendants cut the timber on the be derived from its value in the or- land of Ward by mistake; th: quantity dinary market, with interest.

cut was 193,786 feet; the value on the Winchester brought an action of trover land after it was cut was two dollars per to recover damages for the conversion by thousand feet; the value at Toledo, and defendants of a quantity of pine saw- for which the defendants sold the timber

was twelve dollars per thousand; the er- formed the consideration of the defendpenses of the defendants on the timber in ant's alleged indorsement had a valid incutting and removing the same to Toledo, ception. Defendant subsequently moved nine dollars and thirty-seven cents per to strike the drafts, and all evidence rethousand," and they assessed the plaintiff's lating thereto, out of the case. This was damages at the sum of $3,631 40. denied, and defendant excepted.

Held, That tue instructions given the Held, no error; that the denial of the jury were correct.

motion did not constitute any ground of a Judgment affirmed.

legal exception ; that evidence received Opinion wy Marston, J.

under objection, which for any reason

should not be considered by the jury is EVIDENCE. PRACTICE.

not necessarily to be stricken out, but may N. Y. COURT OF APPEALS,

be retained in the discretion of the court, Marks, respt. v. King, applt.

and the remedy is for the party to ask for Decided February 8, 1876.

instructions to the jury to disregard it. In an action upon a note where she de

Plaintiff offered in evidence a check fense is forgery, other notes and signed by defendant upon the Second Nachecks of defendants, tending to con- tional Bank of Jersey City, given for the nect defendant with the origin of the avails of a rote made by defendant and debt, for which the note in suit was claimed to have been discounted by said given are admissible in evidence,

bank, which it was claimed was paid and A refusal to strike out evidence re crivedl under objection constitutes no

taken up by the drafts, which were the ground for an exception; if for avails of the note, to take up which the any reason it should not be consid- note in suit was given, the note then crel, the remedy is to ask for instruc- discounted having been made for the ac{ions that it be disregarded.

commodation of the maker of the note in This action was brought against de suit. Defendant objected that the wittendunt as the indorser of a promissory uess, who was cashier of the Jersey City jote. The defense was that the indorse- Bank, had po knowledge of the note or ment was a forgery. Upon the trial, cer

drafts, and chat it was not the best evitain drafts given to B., the maker of the vence of the discount cf the note. note in suit, as the avails of the discount

Hell, That the check was a circumof a note to take up which the note in stance connecting the defendant with the snit was given, were received in evidence origin of the debt for which the note in under defendant's exception. The dis- suit was given. count of the note taken up had already

Defendant offered to prove that a witbeen proved without objection.

ness for the plaintiff had been active in G. W. Hotchkiss, for respt.

procuring the indictment of B. for coun0. W. Chapman, for applt.

terfeiting the indorsement. The evidence Held, That the evidence was competent

was excluded. as part of the res gestæ; that their admis Held, no error; that this fact would not sion, without other evidence, did not ne-ave discredited his testimony either in cessarily affect defendant, or tend to es respect to declarations and admissions of tablish the genuineness of his indorse - the defendant, or his opinion as to the ment of the note in suit; that the evi- genuineness o' the indorsement as given dence was also competent as laying a under oath. That the fact offered was foundation for other evidence which might entirely collateral, and was properly reconnect detendant with the note; that it jected. 32 N. Y., 127. was proper as showing that the note which Judgment of General Term, denying

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detendant's motion for a new trial, af- FRAUD. PRINCIPAL AND AGENT. firmed.

N. Y. COURT OF APPEALS. Opinion by Allen, J.

Indianapolis, Peru & Coicago R. R. FENCES. RAILROAD. Co., respt. v. Tyng, applt. N. Y. SUPREME COURT, GENERAL TERM, Decided January 18, 1876. FOURTH DEPT.

A party induced by fraud to make a Spinner v. N. Y. C. and H. R. R. R. purchase of property, and to take ". Co.

warrunty therefor in writing, and Decided January Term. 1876.

under seal, may disregard the latter, A railroad company mrst maintain

sue directly for the fraud, and give fences along the line of its road and parol evidence of the fraudulert at crossings, gates, &c.

representations. Failure to keep gates shut is evrience of A principal can enforce all rights of negligence.

action acquired on his behalf by his In September, 1872, plaintiff was in

agent, irrespective of any obligations possession of a farm near Ilion, Herkimer

or liabilities arising in the trans

action between the principal and County, on which he had a herd of cattle.

agent. Defendant's railroad ran along the side of the farm adjoining the highway, which

in fixing the value of such properiy

as a locomotive engine, the whole lay between the railroad and the farm.

country is but a single market. Between the highway and the railroad

This was an action to recover dimages defendant had built a fence, and in the dence, near the house of one Farrington, ant in the sale to plaintiff of two loc

for the alleged fraud and deceit of defenda gate was placed, as well to enable him

motive engives. The complaint alleged as from part of his farm lving on the opposite side of the railroad purchase by plaintiff through C., its agent, from his house, as to enable persons car

induced by the representations made by rying freight to and from defendant's de defendant, that plaintiff believed and rein

lied upon them; that they were false and pot, near Ilion, to pass to and from said

made with intent to defraud, and that depot with freight. On the night of September 30, 1872 That defendant gave a warranty in writing

by means thereof plaintiff suffered loss. the plaintiff's fence was in some way torn

of the character and quality of the endown, and plaintiff's cattle fassed through

gines. it on to the highway, and the gate near Farrington's being open, the cattle

Held, That the complaint contained

facts sufficient to constitute a Cause of passed through on to the track of the de

action for fraud. fendant, and some of them were killed. Verdict for plaintiff.

Also, held, That an action ex delicto can Held, That a railroad company is bound be maintained, where after fraudulent rejr to see to it that all gates on its road are

resentations have been made, a personal kept closed, and it is liable if they are left undertaking had been given, which would open, even by the owner of land for whose not have been taken but for the confidence convenience they are constructed. Such induced by the representation, and where owner owes no duty to the owner of cat

these have been relied upon, both in maktle that may be in the highway or adjoining the contract and in taking the war. ing fields.

ranty of quality, and it was shown that Judgment affirmed.

the deceit was the moving cause of both Opinion by Mullan, P. J.; Smith and acts, thongh the contract was in writing Gilbert, J. J., concurring.

and sealed, and contained covenants of

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