a member, embraces what was formerly Judgment reversed.
two school districts of the town of Avon, Opinion by Phelps, J.
known as the second and fifth districts,
and by certain proceedings, authorized by

RECEIVER. CAPACITY TO SUE. statute, those two districts were consoli

ASSESSMENT ON STOCK. dated into one, now called the second district. The inhabitants of the old second U. S. DISTRICT COURT-SOUTHERN DISdistrict were dissatisfied with the pro

TRICT OF N. Y. ceedings and adopted certain measures Edward L. Stanton, Receiver of the which they claim to have been authorized First National Bank of Washington, D. by a special act of the General Assembly C, v. Catherine C. Wilkeson. for the dissolution of the two consolida Decided February, 1876. tions, and the re-establishment of the old An action to recover an assessment on districts. The legal validity of these pro stock held by defendant may be ceedings is denied by the relator, who maintained by the receiver of a claims that the only legal district within tional bank. the territory is the consolidated or new The U. S. District Court has jurisdioSecond district.

tion of such an action. The inhabitants of the old second dis- A suit at law is the proper remedy. trict held their annual meeting as such in Action by the receiver of the First NaOctober last, and elected the defendants a tional Bank of Washington to recover 60 committee of the district, and they are per cent. assessment on 100 shares of the now claiming to be, and are acting as a par value of $10,000, held by defendant committee of the old second district, and when the bank suspended. The bank do not claim to be a committee of the was organized under the act of January coasolidated or new district.

25th, 1863. Defendants pleaded that they did not Defendant demurred to the complaint, claim to exercise the office in the new and urged as grounds, first, that the plainconsolidated district, and as to the old tiff bad no capacity to sue; that under second district they were legally electeu. Sec. 721 of the R. S. of the U.S., the laws

De murer by the State, and judgment of the State of New York govern, and below in its favor.

that under Secs. 111 and 113 of the N. Y. Held, 1. The proceeding assumed the Code, the plaintiff cannot maintain the continued legil existence of the new con- action, solidated district, and that defendants' Second, That the United States Dig. plea that they did not claim the office trict Court has no jurisdiction of the suit. was a perfect answer.

Third, That the proper remedy of the 2. But if the proceeding was to oust plaintiff is not by separate suits at law them from uflice in the old second district, against the individual stockholders, but their answer that they were duly elected by a bill in equity. was good.

Man & Parsons for piff. 3. That if the old district was not now Gray & Stanton for deft. a legally existing district, the defendants

Held, 1. That by Section 5234 of the were not legal officers, and a quo warranto Revised Statutes, the receiver wis authorwill not lie to try the right to an oflice ized and iequired to sue; and that, under that is not a legally authorized public its provisions, neither the comptroller of office.

the currency nor any one else can sue; 4. The legal existence of the district that therefore the action wils properly cannot be tried in this proceeding. brought by the receiver.

2, That under Section 563 of the Re- his mother, and also in the share which vised Statutes, this court has jurisdiction, descended to him from his sister Fanny. if the plaintiff is an officer of the United Subsequent to this Barbara died, leavStates, and that in view of the statutes ing a will by which she devised all her under which plaintiff was appointed, he real estate to the defendant. must be regarded as such officer.

Plaintiff, in his complaint asks that the 3, That an action at law will lie against deed from Peter A. to the Uhles be rethe individual stockholders, to enforce the formed by inserting therein a reservation collection of an assessment.

by the grantor of the share of said farm Demurrer overruled.

that descended to him from his sister Opinion by Blatchford, J.

Fanny, which it was the intention of the

parties to that conveyance should be reREFORMATION OF DEED. served, but which was onnitted by mistake, N. Y. SUPREME Court-Gen’L TERM. &c. The complaint also asked for FOURTH DEPT.

a partition. It was stipulated on the Caster respt. v. Sitts et al. applts.

trial that if a reformation of the deed Decided January, 1876.

from Peter A. to the Uhles was desired A mistake in a deed can be corrected in the land were as stated in the decree.

then the rights and interests of the parties as between the parties to the convey.

The referee to whom the action was reance, but not as against a bona fide purchaser without notice.

ferred, found judgment and ordered reAction to reform a deed. Partition,

formation as asked, and directed a parti

tion, &c. In November, 1864, one A. C. died intestate and seized and possesseri of cer

Peld, That that portion of the decree tain lands, and leaving him surviving his direct ng a reformation was erroneous; wife Barbara, Peter A., Elizabeth, Emma, that defendant is to be treated as a bona Louis: and Fanny, his children.

fide purchaser of the interest of her Funny died intestate, and without hav- mother, as her mother clearly was, withing conveyed her interest in said land, ont notice of any mistake. Mistakes beand without issue, &c.

tween the same parties to the instruments, Emma, Elizabeth and Louisa conveyed or transactions, may be corrected, but to Peter A. their interests, except their not as be!ween others not in any way coninterest in the dower right of the mother nected with such instrument or transacand in the estate from their sister Fanny.

tions. Dower was never set off to the widow. No mutual mistake of the parties to

Peter A. subsequently conveyed to one the deed was proved, and in such a case Uhle all his right, title and interest in there cannot be any reformation. said land, subject to, and reserving the Judgment reversed. dower right of the widow, Barbara. Opinion by Mullin, P. J.

Subsequent to this, the Uhles sold to widow Barbara the interest sold to Peter

A., subject &c., to the right of dower of


ERRORS. Subsequently all the parties in interest united in a conveyance of 64 acres of said Ogden Spencer v. Edmund D. Roberts land to one Caster, leaving 79 acres sought

Same v. James G. Wells., et al. to be partitioned in this case.

February, 1875. Subsequently Peter A. conveyed to At common law and by statute of 1873, plaintiff his interest in the dower right of a right to immediate possession is

necessary to maintain replevin for one of plaintiff's vendors was indebted to goods unlawfully detained. defendant, and refused to deliver the wag Under statute of 1866, title was suffi- on until the defendant was paid, and put cient.

their refusal to deliver on no other ground. Two actions of replevin for goods un

In their answers on the trial defendants lawfully detained; brought to the City insisted and proved that when plaintiff's Court of the city of Hartford.

vendor sold the wagon to plaintiff, such The defendants had attached, as the vendors had no title thereto, and could property of W. S. Spencer, a son of the not sell the same. · *plaintiff, certain hotel furniture owned by

Held, That the ground on which the the plaintiff, and leased by him to the defendants based their refusal being said W. S. Spencer. Judgment below, in wholly untenable they waived all others, both suits, for the defendants.

and cannot be allowed afterwards to abanHeld, It appears from the records in don it and insist on another and different these cases that the plaintiff was the ground on which they claimed to hold owner, but had not the possession, or the the property. right to the immediate possession, of the

Judgment reversed. goods which were replevied. At common law, and by the present re

Opinion by Mullin, P.J. vision of the statutes, which has gone into effect since these actions have been REPLEVIN. DEMAND. FIXTURES. pending, the right to the possession. ac SUPREME COURT OP KANSAS. companied by a general or special property

Shoemaker et al. v. Simpson. in the goods, is vitally essential; but by sections 327, 337, and 341, of chapter 15,

Decided December, 1875. of tiile 1, of the revision of 1866, in force No demand is necessary to maintain when these suits were commenced, the

replevin where defendants' possession plaintiff seems only to be required to either

is illegal and wrongful. make out a title as the true owner, or show An o'oner. of personal property can that he is entitled to the immediate pos

nunt, against his will, be deprivell of

the title to the same, by having it atsession. There is error in the judgment

tached, without his con sent, to the real complained of.

estate of another, by a third person, Opinion by Phelps, J.

where such personal property can be

removed from such real estate withREPLEVIN. DEMAND. REFUSAL.

out any great inconvenience, and

without any substantial injury to N. Y. SUPREME COURT, GENERAL TERM the real estate. FOURTH DEPT.

This was an action of replevin brought Bradly v. Cole.

by Shoemaker, Miller & Co., against S. Decided January; 1876.

M. Simpson and others, for the recovery À refusal based upon one ground to

of twenty-six bars of railroad iron. deliver personal property to one

Originally, Shoemaker, Miller & Co. claiming it, is a waiver of all other owned a large lot of railroad iron (includobjections to a delivery, which can- ing such twenty-six bars), at the State not afterwards be abandoned and line, near Wyandotte, Kansas. They mothers insisted upon.

tended to use the iron in building a railPlaintiff brought an action and replev- road, which they had previously agreed to ied a wagon. Before suit brought plain- build for the Kansas Pacific Railway Com. tiff made a demand, and defendant refused | pany (then Union Pacific Railway Comto deliver the wagon, on the ground that pany, Eastern Division), from Junction

City, Westw :rd.

They employed the erty became theirs by reason of its being Kansas Pacific Railway Company to spiked down to the cross-ties, and being transport the iron from the State line thus made a part of the realty, which bewestwardly, to the place where they ex-longed to them. pected to use it. At the same time Wil

Judgment below for defendants. liam A. Simpson (one of the defendants), owned certain town lots in the city of cent of all wrong in the premises could

Held, 1. That the plaintiff's being innoLawrence, Kansas, on the north side of not be thus deprived of their property; the Kansas river, and between the river that whilst in some cases iron attached to and the Kansas Pacific Railway. Pre- the road-bed would become a part of the viously a railroad track had been con- realty, clearly it was not se here. It was structed across such lots, from the Kansas i taken against their consent, attached to Pacific Railway to the river. But at this the road-bed against their content, hy a time the iron which had originally been third person, and it may be removed withsat on this track had been removed there. Tout any great inconvenience and without from, and only the road-bed and cross-ties substantial injury to the land. then remained. About this time, the Kan

2. No demand was necessary.

DeBas Pacific Railway Company, or its agents, fendants

' posse :sion was without authority took the twenty-six bars of iron from

from the owners and inconsistent with the iron of Shoemaker, Miller & Co., at their rights

, and was therefore illegal and the State line, transported them to Law

wrongful. rence, and there spiked them on the cross-ties on the lots of William A. Simp

Judgment reversed. 8011. This was done by the Kansas Pa

Opinion by Valentine, J. cific Railway Company, or its agents, for the temporary purpose of obtaining some ninety car loads of sand from the Kansas R. R. DAMAGES-CONTRIBUTORY river; and it was intended to remove the

NEGLIGENCE. iron as soon as the sand was obtained. N. Y. SUPREME COURT, GENERAL TERM, This was all done without the knowledge

FOURTH DEPARTMENT. or consent of either Shoemaker, Miller & Co., or Wiliam A. Simpson. The railway

Hill, admr., Respt., v. The New York

Central and Hudson River R. R. Co., company had, however, taken other iron

Applts. from Shoemaker, Miller & Co. for which they subsequently settled, but the parties

Decided January, 1876. never settled for this particular iron; and The question of contributory negligence Shoemaker, Miller & Co. objected to the

is one for the jury. railway company taking or using their Refusal to charge. iron in any such manner. Afterwards, Wil- Court should not set aside a verdict of

a jury except upon clear and palpaliam A. Simpson, through his agents, re ble evidence of fraud, bias, or preju moved the twenty-six bars of iron from dice. the lots, claiming it to be his iron. Shoe

This action was brought for damages maker, Miller & Co. then commenced this

for the death of plaintiff's wife. action ard replevied the twenty-six bars

Plaintiff and his wife were driving in a of iron from William A. Simpson and his buggy, and in crossing defendant's track agents, the other defendants.

the buggy was struck by one of the dePlaintiffs made no demand for the prop- fendant's trains and plaintiff's wife was erty before commencing the action.

killed. The defendants claimed that the

pop On the trial defendant's counsel ro

quested the Court to charge the jury jury upon the whole evidence and circum“ that notwithstanding plaintiff stopped stances of the case, and it is not the provhis horse, and looked and listened when ince of the court to overrule their decision at a distance of sixteen rods from the except upon clear and palpable Case of crossing, yet, when he came to a point mistake, bias or prejudice, and when their where he could again look, he was bound verdict is essentially unjust and unwarto look, and to keep up that looking, down ranted. to the time when he reached the track, The motion for a new trial should be and if he omitted to do so, he is chargea- denied. ble with negligence, and that he was

New trial denied. bound to put himself in a position, so far as his vehicle was concerned, so that he could look. The Court refused to so charge, and

STOPPAGE IN TRANSITU. plaintiff's counsel excepted.

PENNSYLVANIA Convon PLEAS, LUThere was a verdict for the plaintiff.

ZERNE COUNTY. A motio.. was made to set the verdict

Gallagher v. Whitaker. aside, which was denied.

Decided February 16, 1876. Appeal from order denying new trial and for judgment.

Delivery of good. by a vendor to a car.

rior is a delivery to the vendec. But E. Harris, for applt.

until the transitus is completely J. H. Martindale, for respt.

ended, the vendor has a right to stop By the Court: E. Darwin Smith, J. them in transitu, if the vendre was None of the exceptions taken on the trial

in solvent at the time of the purchase,

whether it was known to the vendor are, we think, well taken. The motion

or not, no right of stoppage exists. for a nonsuit at the close of the plaintift's case, and also at the close of the evidence,

Action for damages for conversion. were made upon the ground that the neg

Defendant, as sheriff, seized under proligene of the plaintiff's intestate contrib-cess certain goods consigned to one S. At uted to the injury. This was a question the time of the seizure they were in the which properly belonged to the jury, in possession of plaintiff's agent, who had view of all the facts of the case. The taken them from the carrier under a claim point was not taken that the plaintiff was of right to stop in transitu, and also upon bound to prove affirmatively that his in- the ground that they had not been sold. testate was free from negligence.

They had, when plaintiff took them, The refusal of the Circuit Judge to reached the point where the carrier was to charge as requested in respect to the duty deliver them, and had been in the carrier's of the plaintiff's intestate to continue to warehouse about a month.

S. never listen and to look for trains coming from called for the goods. the west on the defendant's road was not The coʻırt left it to the jury to say error. The judge had charged fully on whether or not there had been a sale, and that subject in respect to the duty of ine charged that delivery to the carrier was plaintiff's intestate, and it was not error a delivery to S., but that plaintiff had a for him to refuse to vary his charge. right to stop the goods in transitu if, after

The charge of the judge, upon the the sale, and before deiivery, S. became whole case, was full and clear, and pre-insolvent or bankrupt; but that if he was sented the case to the jury upon fair and insolvent at the time of the sale, whether proper grounds. The question of negli- that fact was known to defendant or not, gence in such cases is peculiarly one for a the right to stop did not exist.

« ForrigeFortsett »