pay for the assessment on his own lot, A common carrier is not liable for the but by mistake paid for that on the lot non-delivery of gooils taken from his adjoining. It did not appear that the as

possession by legal process, without any

act, fault, or connivance on his part. sessment was cancelled of record, or that

Nor is he bound to follow them up on bewhen the mistake was discovered and pay.

half of the party for whom he undertook ment demanded it could not have been

to carry them. But he must give prompt collected of the person liable, or by sale notice that the good: have been seized of the premises.

and taken from his possession. D. J. Dean, for appl'ts.

Appeal from Martin Circuit. . I'm. C. Whitney, for resp't.

The complaint alleged that appellant : Held, That plaintiff was entitled to re- undertook to carry a quantity of wheat cover back the money paid to him. Where from Bridgeport, Illinois, to Vincennes, money has been paid under a mistake of Indiana, and a failure to deliver. a material fact, although there was negli The appellant pleaded, in substance, gence on the part of the person paying it, that while the wheat was in a car of the it can be recovered back, unless the posi- company at Bridgeport awaiting the comtion of the party receiving the payment ing of a train to transport it to Vincennes, has been changed in consequence of it. In without any act, fault, or connivance of that case the person who made the pay- defendant or its servants or agents, one ment must bear the loss occasioned by his Johnson sued out of the Circuit Court of negligence. If circumstances exist which Lawrence County, Illinois, & writ of retake the case out of the general rule the pleviu by virtue of which the Sheriff burden of proving them rests upon the seized the wheat and took it out of posparty resisting the repayment (43 N. Y. session of defendant and still retains it, 452; 46 id., 695; 54 id., 432; 55 id., 211). by reason whereof the defendant was pre

The defendant claimed that the money vented from transporting or delivering it. collected on local assessment is not for It was averred that the Lawrence Circuit the benefit of the city; and that the city liad jurisdiction. acts in making local improvements for A demurrer to the answer, on the the benefit and in behalf of the owners of ground it did not state facts sufficient to the property assessed.

constitute a defense, was filed by plaintiffs Held, That the improvements spoken and sustained by the Court. Defendant of as local are instituted by the corpora- declining to answer further, there was tion and are public improvements as strict- jud_ment for plaintiffs. ly as any other improvements undertaken Held, 1. It is impossible for the carrier by it; that the city receives the money to deliver the goods to the consignee when collected through a local assessment in they have been seized by legal process and its own right and not as agent or deposi- taken out of his possession; the form of tory.

the process is immaterial, as in any case Judgment of General Term affirming the carrier must yield to the authority of judgment for plaintiff affirmed.

legal process. After the seizure of the

goods by the officer, by virtue of the proOpinion by Andrews. J.

cess, they are in the custody of the law, COMMON CARRIER. LIABILITY and the carrier cannot comply with his WHERE GOODS ARE SEIZED contract without a resistance of the proBY LEGAL PROCESS.

cess and a violation of law. The right of SUPREME COURT OF INDIANA. the officer to hold the goods involved ques0. & M. R. R. Co. v. Yohe et al. tions which could only be determined by Decided January Term, 1876.

the trivunal which issued the process, and

the carrier had no power to decide them. fendants, who were highway commissionIt makes no difference that the processers, in their official capacity, to compel was issued in a State different from that them to enter into contract with plain. in which the plaintiffs reside. The car- tiff, and to restrain them from contracting rier must obey the laws of the various with another. The complaint also asked States in which he follows his calling. damages against them as individuals for a

The carrier is deprived of the possession refusal to consummate an alleged agreeof the property by a superior power—the ment. It appeared that plaintiff, in compower of the State—the vis major of the pliance with a public notice of defendcivil law—and in a.l things as potent and ants, as commissioners, asking for prooverpowering, as far as the carrier is con- posals for doing certain work of which ccrned, as if it were the “act of God,” or they had charge, made a written offer to the public enemy."

do the work at prices named, and proposed 2. The carrier cannot stop, when goods the names of the two sureties for the perar- offered him for carriage, to investigate formance of his contract. This offer and the question of their ownership, nor is he proposal were acceded to by the defendbonnd, when the goods are so taken out ants, and they were ready to consummate of his possess on to follow them up, and the contract, which was to be in writing, be at the trouble and expense of asserting in accordance with its terms. One of the the claim thereto of the party to or for sureties proposed by plaintiff refused to whom he undertook to carry them. qualify, and for this reason the contract

3. That the currier should have given was not consummated. Defendants galve prompt notice to the plaintiffs of the plaintiff time and notified him that a seizure; that if negligent in this respect surety, proposed by him as a substitute, he will be liable.

would not be accepted, and plaintiff made The answer not averring the giving of no farther effort to get the surety first prothis notice, is bad.

posed to reconsider bis refusal t quality Judgment affirmed.

or to secure one who would be satisfactory. Opinion by Dow..ey, J.

Adams & Swan, for applt.

C. J. Lowrey, for respts.

Held, That plaintiff could not recover; N. Y. COURT OF APPEALS.

that he could not maintain an action, as Adams, arpit v. Loes et al. respts.

the minds of the parties had not met in a Decided Dec. 21st, 1875.

perfected agreement; that until the agrecWhen C mmissioners advertise for ment had been reduced to writing and proposals for doing certain work, uni party offers, in writing, to do it signed by the parties the agreement was

still in fieri. at prices named, and proposes names of tivo sureties, and offer and pro

Defendants were not obliged to accept posals are acceded to, and afterwards any sureties but those proposed. one of the sureties refuses to quality, Hicks v. Whitmore, 12 Wend, 548; and another is offered and refused, Mills v. Hunt, 30 id., 431, distinguished. the agreement is still" in fieri," ani

Public officers, in determining whether no action can be maintained to con- a proposed surety is a proper person to be summate the agreement or to recover, accepted, may consider other things bem The parties are not obliged to accept sides his present reputed cr actual pecu

any sureties but those first proposed. Public officers are to consider character, niary responsibility; his residence, voca

&c., as well as pecuniary responsi- tion, business, business habits, the charbility, in accepting svreties.

aeter of his investments and property, his This action was brought against de-'character for integrity and prudence may






properly influence their judgment. senti, and, if broken at all, was As to whether such an action as this broken


deed was can be maintained against such public executed (4 Kent Com. 471; Rawle officers quære.

Cov. of Title 89;

N. Y, Judgment of General Term affirming 495); and unless an action would lie at judgment dismissing complaint, affirmed. once there is no breach of the covenant; Opinion by Allen, J.

that no lien or incumbrance on the lands

was created by the entry of the land in DEED. ASSESSMENT ROLL: the assessment roll of the assessors ; that N. Y, COURT OF APPEALS.

the assessment roll is the basis


which Barlow. et al., resp't, v. The St. Nicho- the Board of Supervisors acts in appor

las National Bank of N. Y., applt. tioning the tax; but it is in no sense the Decided December 14, 1875.

imposition of a charge upon the land,and

the assessment roll not having been acted A covenant against incumbrances, in a

dcer, is a covenant, in presenti, and upon by the Board of Supervisors, and the there can be no breach unless an action tax imposed until after the land had been thereon would lie at once.

conveyed to the plaintiffs, they could not The entry of the land in the assessment recover (Rundell v. Lakey, 40 N. Y. 513,

roll is not an imposition of a charge up- distinguished). on the land.

It would be an unwarrantable extension This action was brought for a breach of the ordinary and natural meaning of the of a covenant in a deed. On the 27th general covenant against incumbrinces to day of October. 1868, defendant conveyed hold that it applics to a tax levied after to the plaintiff a farm, by deed, contain the covenant was made. ing a covenant that the premises are Order of General Term reversing judgfree and clear from all incumbrances what- ment for defendant entered on report of

referee reversed, and judgment affirmed. Defendant had owned the farm for a Opinion by Andrews, J. year previous. The assessors of the town

DEMAND. in which the farm was situated had. as

SUPREME COURT. GEN. TERM., FIRST sessed it in June of that year to one E..

DEPT. the occupant, and completed their assessment roll in August thereafter, as required

Simeon Salam n, resp., agst. Marcus

Van Praag, applt. by law, and delivered it to the Board of

Decided Jan. 28th, 1876. Supervisors of the County, at their annual meeting, held November 9,

In an action to recover personal prop1868, and the Board of

of Supervi.

erty, no demand is necessary of a

defendant who wrongtully detains sore, pursuant to law, extended the

the pr perty, not being a bona fide taxes thereon and delivered it with their warrant to the collector of the town. The The refusal of a judge to allow a wittax on the roll was entered against E.,and ness to be sworn after the case has with the collector's fees was paid by the been closed, is not reviewable on plaintiffs, who have demanded back the appeal. sum paid by them of the defendant, which Where there are slight circumstances demand has been refused.

tending to establish the bad faith of

a purchase, it cannot be said by an Edward H. Hawkins, for appl't.

Appelate Court that it was not suffiFrancis Larkin, for resp't.

cient for the purpose. Held, That the covenant upon which this Appeal from & judgment recovered action was brought was a covenant in pre against defendant and appellant.



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are held.



This was an action brought to recover the weight to be given to the testimony
the possession of personal property. Judgment affirmed.
The complaint alleges that plaintiff,

Opinion by Brady, J.; Davis, P. J,
being induced by false and 'fraudulent and Daniels, J., concnrring.
representations, and relying upon same,
sold and delivered to one Prowler a EQUITABLE MORTGAGE.
quantity of tobacco. That Prowler trans PHILADELPHIA COMMON PLEAS.
ferred same to defendant, who wrongfully

Sidney v. Stevenson. detains same.

Decided January 29th, 1870.
Answer substantially, a general denial. In Pennsylvania an equitable mort,
No demand by plaintiff from defendant

gage cannot be created by a deposit for the return of the goods previous to the of title deeds, but a Court of Equity commencement of the action was shown. will not enforce their return until the After the case had been closed and

party depositing them has complied summed up, the defendants requested the

with the agreement under which they privilege of calling Prowler as a witness, which request was denied. It was urged

Bill filed by plaintiff praying that deon appeal that there was no evidence to fendant be compelled to surrender a deed support tlıe finding of the jury, that de- for a tract o. land, of which plaintiff is fendant was not a bona fide purchaser; that the judge erred in refusing to direct a

It sets up that the deed was left with judgment for the defendant,. no demand defendant, until such time as plaintiff having been shown thas a new trial should

should demand it, a demand and refusal. be granted by reason of the judge's refusal The answer sets up that the deed was left to permit Prowler to be sworn after case

with defendant upon an agreement that was closed.

he should hold it until plaintiff repaid Lewis Saunders, defts. atty.

certain loans made him by defendant, and Thomas Darlington, pltffs. atty.

that the money loaned had not been re

turned. Held, on appeal, That in case the de To this answer no reply is made, nor is fendant was not a bona fide holder, no the truthfulness of its averments in any demand before suit was necessary, and by way qnestioned. the finding of the jury the character of Held, The prayer of the bill is sought defendant's title is declared and no de- to be enforced upon the ground, that admand was necessary. That the refusal mitting the truth of the case made by the of the judge to allow Prowler to be sworn defendant, the contract is, at most, an atwas entirely in the discretion of the judge tempt to maintain an equitable mortgage and not reviewable by this court, and, by a deposit of the deeds as a security for further, that although the evidence tend- money loaned, which cannot be done. ing to show the defendant was not a bona Bowers v. Oyster, 3 Penna., 239, decides file purchaser was very slight, there were that there can be no such thing as a valid circumstances tending to establish the and efficacious parol mortgage in Pennsylbad faith of the purchase, and it cannot vania; first, because it is contrary to the be said by an Appellate Court that it was statute of frauds and perjuries, and secnot sufficient for the purpose. It is im- ond, the recording acts and the act prepossible for Appel ate Courts to reproduce scribing the mode of proceeding to enforce the trial us it occurred. The jury have payment of debts due upon mortgage the advantage of seeing and hearing the stand in the way of giving effect to a parol witnesses, and are best able to judge of mortgage. A contrary doctrine had been


taken for granted in the case of Reikert whichever has accredited hiin must

. Madeira, 1 Rawle, 325 ; Shietz v. Deif bear the lo88.
fenbach, 3 Barr, 233, reaffirms the doc Sur rule for new trial.
trine of Bowers v. Oyster.

Action to recover fruin defendants who This case gives rise

to no

stock brukers, the value of 300 shares question. The defendant does not claim of the stock of the Pacific Mail S:eam: that the deposit of title deeds with him, to ship Compiny, which had been sold and be held until the money loaned to the negotiated with them by one Charles A. plaintiff is reraid, in any proper sense con- Harte, a clerk or book-keeper in the em. stitutes him a mortgagee of the premises; ploy of the plaintiffs. lIarte had gaived nor has he in any way sought to enforce the confidence of the plaintiffs, and by his claim as a valid claim against the means thereof had access to their box in Jund.

the vault of the Central Bank, from which : The single question is, can the plaintiff he stole the certificates of the said stock, successfully invoke the aid of a Court of and without plaintiffs' knowledge parted Equity to enforce the return of his deed, with them to the defendants. before he has complied with his agreement Upon the triol the plaintiffs proved with the defendant. The familiar p inci. their property, the theft o. Harte, and ple, that every one must come into equity the conversion of the securities by defendwith clean hands, applies here with all its ants. force; no man being entitled to claim to

Upon the part of the defendants it was have equity awarded to him who is not mainly contended, that the certificates as himself ready to do equity, and who does made and endorsed, were negotiable innot proffer to do it. It is clearly contrary struments, made so by the customs of to that which is conscientions and just to their peculiar business. aid a party to violate his own agreement, They were made and endorsed as fol. whereby he has taken an advantage, and, lows: in this case, a large pecuniary advantage, No. 51694. (Vignette.) 100 shares. to himself. The deed in question was de- Pacific MAIL STEAMSHIP COMPANY, rosited with the defendant, to hold until the plaintiff would comply with his obli Be it known that Joseph J. Lawrence gation to repay the money, which had been is entitled to one hundred shares of one loaned on the faith of this deposit of the hundred dollars each in the Capital Stock deed, and the promise of repayment. of the Pacific Mail Steamship Company, There has been no repayment, nor an offer transferable only on the books of the Conto repay. The plaintiff must, therefore, pany by him or his attorney on surrender be left to seek whatever legal right he of this certificate. may have, having no standing in a Court

P. McG. BELLOWS, of Equity

Vice-President. Bill dismissed.

THEO. T. JOHNSON, Opinion by Allison, P. J.


(Written in red ink, across left of face.) FRAUD. INNOCENT PARTY. Registered and countersigned this 15th PHILADELPHIA. COM

day of October, 1872, one hundred shares. MON PLEAS.

U. S. Trust Company of New York. Aull et al. vs. Colket et al.

W. DARROW SUTY, Decided January 29th, 1876.

Registrar of Transfers.

(Stamped in blue ink.) Where one or two innocent persons Cancelled March 25, 1873.

must suffer by the fraud of a third, (Endorsed on certificate.)


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