« AnteriorContinuar »
erty, and the clause in the contract can, therefore, nee Bank appears only as an indorser in blank of a operate in many cases where negligence cannot be im- promissory note before indorsement by the payee and puted.
while the note is in the hands of the maker. Such an In Massachusetts, in Smith v. Railroad Co., 12 Allen, indorsement by a bank is, to say the least, unusual, 531, the court say: “The common-law liability of a car and sufficient to put a discounting bank upon inquiry rier for the delivery of live animals is the same as that as to the authority for making it. for the delivery of merchandise. Upon undertaking
But we are not left in this case to inquiry or pretheir transportation he assumes the obligation to de
sumption. Both the correspondence and the testiliver them safely against all contingencies, except such mony of the cashier of the St Louis Bank show conas would excuse the non-delivery of other property." clusively that this was the understanding of the parThe qualification above referred to excusing the car ties. Parmelee in transmitting the note for discount rier from liability for loss occasioned by the nature wrote for himself, and not as cashier. He spoke of his and character of the property is recognized. This quali own note and authorized a draft upon bimself personfication or exception, as before stated, is applicable to ally for the interest. He pledged his own stock for all property, and does not affect the common-law lia the payment of the note. Wernse, the St. Louis cashbilities to any greater extent than in respect to other ier, says the negotiations opened with an application property, except that the instances may be more nu by Parmelee for a loan to enable him to pay for bis merous where the carrier will be excused.
stock in the Shawnee Bank, upon the pledge of the In Angell on Carriers, $ 214, it is said: “Such a case stock as collateral. There is not a single circumstance would seem to be analogous to the case of loss of mer tending in any manner to prove that the transaction chandise owing to some inherent defect which caused was looked upon as a rediscount for the Shawuee Bank, the destruction of it while in transit.”
except the entries in the books of the St. Louis Bank, As well might carriers be exempted from common and these are far from sufficient to overcome the law liabilities for loss of inanimate property as for positive testimony as to what the agreement actually animals, if immunity from loss from iuherent defects, was. or from the nature and character of the property, will This being the case, the question is directly preproduce that result.
sented as to the liability of the Shawnee County Bank The only authority seeming to favor the position of upon such an indorsement. It is certain from the testhe respondent is the Cragin Case, 51 N. Y. 61. The timony that no indorsement of the kind was ever exloss of the hogs in that case was caused by heat, and pressly authorized by the bank. None of the officers, the negligence attributed was in not cooling them off except Parmelee, and Hayward, the vice-president, with water. We do not think, under the peculiar ever knew that it bad been made until long after the stipulation and the character of the property in that | last discount had been obtained. The books of the case, that it is in conflict with the views before ex Shawnee Bank contained no evidence of such a transpressed.
action, and the accounts of the St. Louis Bank, as The judgment of the General Term must be re. rendered, gave no indication of the actual character versed aud that of the County Court affirmed.
of the paper discounted. All concur. Andrews, J., taking no part. Folger Ordinarily the cashier, being the ostensible execuand Miller, JJ., absent.
tive officer of a bank, is presumed to have, in the ab
sence of positive restrictions, all the power necessary ACCOMMODATION INDORSEMENT BY BANK. for such an officer in the transaction of the legitimate
business of banking. Thus, he is generally understood SUPREME COURT OF THE UNITED STATES. – OCTO
to have authority to indorse the commercial paper of BER TERM, 1877.
his bank and bind the bank by the indorsement. So,
too, in the absence of restrictions, if he has procured WEST ST. LOUIS SAVINGS Bank, appellant, v. PARMELEE AND SHAWNEE COUNTY BANK.
a bona fide rediscount of the paper of the bauk, his The cashier of a bank is not presumed to have power, by
acts will be binding, because of his implied power to reason of his official position, to bind the bank as an
transact such business. But certainly he is not preaccommodation indorser of his own promissory note, and actual authority to make such indorsement must sumed to have power, by reason of his official position, be shown before a recovery can be had thereon.
to bind his bank as an accommodation indorser of his APPEAL from the Circuit Court of the United States
own promissory note. Such a transaction would not A for the District of Kansas. The defendant, Parme
be within the scope of his general powers, and one lee, made his individual note, payable to the order of who accepts an indorsement of that character, if a the plaintiff, and indorsed it “G. F. Parmelee, Cash
contest arises, must prove actual authority before he ier.” The consideration of the note was a loan to
can recover. There are no presumptions in favor of Parmelee by plaintiff. The directors of the Shawnee
such a delegation of power. The very form of the County Bank, of which Parmelee was cashier, did not
paper itself carries notice to a purchaser of a possible know of the indorsement. The case is reported be
waut of power to make the iudorsement, and is suffilow, 3 Dillon, 403.
cient to put him on his guard. If he fails to avail Mr. Chief Justice WAITE delivered the opinion of
himself of the notice and obtain the information the court.
which is thus' suggested to him, it is his own fault, The testimony in this case satisfies us beyond all
and as against an innoceut party he must bear the doubt that the liability of the Shawnee County Bank,
nee County Bank, loss. if any liability exists, is that of an accommodation in
The decree of the Circuit Court is affirmed. dorser or surety for Parmelee, its cashier, and that
NOTE. - See Houghton v. First Nat. Bank of Elkhorn, 7 this was known to the St. Louis Bank when it made
Am. Rep. 107, where it is held that a bank may be liable on the discount. The note itself bears upon its face the
an accommodation indorsement. See, also, note to the most unmistakable evidence of this fact. It is made above case appended to the report of the decision below. payable directly to the St. Louis Bauk, and the Shaw-I 3 Dillon, 405.
INTRODUCTION TO A TREATISE ON THE
law does not forbid us to part with; those only
are inalienable which we cannot part with consistLAW OF DAMAGES,
ently with the law, because restrained and limited FORMERLY CONTEMPLATED BY HON. FRANCIS by it. The right of personal security, the right of BRINLEY, NOW OF RHODE ISLAND.
personal liberty, and the right to acquire and enjoy
property, have been, in this country, considered and THE municipal law of this country, like that of frequently declared to be natural, inherent and
I Rome and of England, is divided into two great inalienable. branches, civil and criminal. Municipal law strictly Rights are also said to be perfect or imperfect. denotes the particular customs of one single muni- The former may be asserted by force, or what, in cipium or freetown, but may with propriety be applied | civil society, comes into the place of private force, to any one State or nation, which is governed by by course of law; as the right to life and property; the same laws and customs. “Jus civile est quod for if they be assailed, the party making the attack quisque sibi populus constituit." It is a rule of civil may be repelled by violence, or compel the author contract prescribed by the supreme power in a State of the injury to make restitution or satisfaction by commanding what is right and prohibiting what is law. But when we cannot use forcible methods in wrong. 1 Bl. Com. 43, 44.
order to secure the enjoyment of rights, they are The primary and principal objects of the law are of the imperfect sort. Thus children have a right Rights and Wrongs. The former are either those to affection from their parents, and the latter, to which concern and are annexed to the persons of duty and reverence from their children; yet, if these men, and are called jura personarum, or rights of rights be on either side withheld, there is no compersons; or such as may be by man acquired over | pulsion by which they can be enforced. Paley's external objects, or things unconnected with his Philosophy, Book 1, chap. 10; Burlemaque's Prin. person, which are styled jura rerum, or the right of of Nat. & Polit. Law, Part 1, chap. 7; Rutherthings. Wrongs are divisible into private urongs, forth's Inst., B. 1, chap. 2. which, being an infringement merely of particular | Mr. Justice Tucker makes a fourfold division of rights, concern individuals only, and are called civil Rights: First, Natural rights, which appertain to injuries; and secondly, public wrongs, which, being every man, as a moral agent, independent of any a breaclı of general and public rights, affect the social institutions or laws, whatsoever; to which all whole community, and are called crimes and misde- | men, without distinction, so long as they remain in meanors.
a state of nature, are absolutely entitled. The right Right has been described as a moral quality of self-preservation, is a natural right. Second, Social annexed to the person, justly entitling him to possess rights, which appertain to every individual in a some particular privilege, or to perform some par- state of society, without regard to the form or ticular act. Grot., Lib. 1, cap. 1, $ 4. In this nature of the government in which he resides, The sense it is used, when we say that a man has a right right of holding lands by deed, instead of actual to bis estate, or a right to defend himself; and this possession, the only title which the law of nature right is conceived to be some quality which belongs gives, is a social right, being the creature of the to him, or is inherent in his person. Now, in this artificial institutions of society. Third, Civil rights, definition, Grotius, instead of describing the quality | taken in a strict and confined sense, as contra-disitself, has only described the effect of it; instead tinguished from natural and social rights, are such as of informing us what it is, and wherein it consists, appertain to a man as a citizen or subject, of this or he only tells us what it does, that it makes a man's that particular State or country; in his private and actions or his possessions just. However, we may | individual capacity as a free agent, and member of the easily discover what this quality is, if we will but body politic or State, in respect to the State or body ask ourselves what it is which makes our actions politic; and contra-distinguished from such as might and our possessions just? The answer is, that they be due to him as a magistrate, legislator, judge, or are just, where they are consistent with law; and other public character, agent or functionary. The consequently, right itself, in civil society, is that right of electing, and being elected to any public which any man is entitled to have, or to do, or to office or trust, may be considered as among the most require from others, within the limits prescribed by | important of these rights. Fourth, Political rights, as law. Rutherforth's Inst., B. 1, chap. 2, § 3; Kent's contra-distinguished from the three former, are such Com., Lect. 24.
as appertain to a man or body of men, as magistrates, Rights, when applied to persons, are distributed legislators, judges, or other public agents. Thus into absolute and relative; the former, which are the prerogatives of a King of Great Britain are his sometimes called natural, are such as appertain and political rights; and the powers vested in the Presibelong to men, considered as individuals or single dent of the United States; in the senate; and in persons, and would do so, even if there existed no the executive, legislative and judiciary departments, civil government in the world. Thus the right of and officers of the several States, constitute their providing for self-preservation is a right natural to | political rights respectively. Bl. Com., B. 1, chap. man. They are often denominated adventitious, i, note of Mr. Just. Tucker. acquired, or artificial rights, and are incident to However scientific the several divisions of rights men as members of society, and connected to each previously described may be, it will be sufficient for other by various ties and relations. Thus property, the purpose of this work to distribute them into or the rights which a person has to his goods, either two grand ones-absolute and relative. The prinmovable or immovable, sovereignty, or the right to cipal aim of society is to protect individuals in the command, and many others which arise from some enjoyment of those absolute rights, which were previous bargain or contract, either express or tacit, vested in them by the immutable laws of nature; are adventitious ones,
but which could not be preserved in peace without Rights are alienable or inalienable, or which may | the mutual assistance and intercourse, which is not be lawfully renounced. The right to property | gained by the institution of friendly and social is alienable; and so, indeed, are all rights which the l communities. Bl. Com., B. 1, chap. 1, note of Mr. Justice Tucker. The effectual security and non jure fit, generali verbo injuria dicitur. Vinnii ad enjoyment of them depend upon the existence of Inst., Lib. 4, title 4, § 1. By injury, the Roman law civil liberty; and that consists in being protected meant offense against the person (1 Browne's Civil and governed by laws made, or assented to, by the Law, 401), and when used in a specific sense, it inrepresentatives of the people, and conducive to the cluded the idea of contumely, and might be comgeneral welfare. Kent's Com., Lect. 24. The end mitted by deed, as assault and battery, or by word of the institution, maintenance and administration | or writing defamatory and libelous. Ib. 403-404. of government, is to secure the existence of the Injuria, in a general sense, denotes every unjust act, body politic, to protect it; and to furnish the indi- but when specially used, it is the same with conviduals who compose it, with the power of enjoying tumelia. Generaliter injuria dicimur omne, quod non in safety and tranquillity, their natural rights and Ljure fit ; specialiter, alias contumelia que a contemnendo the blessings of life. Preamble to the Constitution licta est, quam Græci vppiv appellant; alias culpa, of Massachusetts. The principal view of human quan Græci aðriav (Ey uinua according to laws is to explain, protect, and enforce such rights Viunii), dicunt, sicut in Lege Aquilia damnum injuria as are absolute, which in themselves are few and latum accipitur; alias iniquitas et injustitia, quam simple, and then, such as are relative, which, aris- Græci avoiav nai aduiav rocant; cum enim ing from a variety of connections, are more numerous prætor vel juder non jure contra quem pronunciat, inand more complicated. The absolute rights of each juriam accepisse dicitur. Inst. 4, 4, 1. Injuries by deed individual, as recognized by writers upon the law, were distinguished into such as were atrocious, and as incorporated into many of the State constitutions, such as were not. Atrocious injuries were so deemed are the right of personal security, the right of per- | from the degree of violence, as the wound, mayhem, sonal liberty, and the right of private property, so or assault, was more or less desperate, from the locus that the wrongs or injuries affecting them must in quo, as if done in the forum, or in the presence consequently be of a corresponding nature.
of the court, or in respect to the former, as if comThe law of nature prohibits us from inflicting mitted on a senator, a magistrate, or a patron. injury; so that, if that law be violated, a right to It was necessary to point out these circumstances in reparation attaches to the person injured; that being the libel, and also to state that no reconciliation or the only method of redressing or of making amends remission has subsequently taken place, which for an act which cannot be undone. The same law would put an end to all penal actions, though not which protects an individual from injury, by requir to those of mere reparation. Inst. 4, 15. 9. By the ing others not to hurt him, gives him a demand civil law of Spain, injury is the same as dishonor upon them when they have done him any wrong, to (deshonora), which is done or said to another wrongundo it again, or confers upon him a right to demand fully (a luerto), and in contempt of him. It recogredress in the form of damages. Rutherforth’s Inst., nizes two kinds of injury, one by word (ile palibra), B. 1, chap. 17. Every act of commission or neg and the other by deed (de hecho). In the first, libels lect repugnant to the duties required of all men, are included. Institutes of the Civil Law of Spain, either from their common nature, or particular call- by Doctors D. Ignatius Jordan de asso 7 Del Rio, ing, creates an obligation to repair the loss or injury and D. Miguel de Manuel Y. Rodriguez; translated that has been sustained. Er tali culpa obligatio nat- by Lewis F. C. Johnson, Esq., edition of 1825. uraliter oritur, si damnum datum est, nempe ut id 1 Damage, damnum, by special signification, is the resarciatur. Grotius, Lib. 2, cap. 17, § 1. In the recompense which is given for a wrong inflicted, series of absolute duties, or such as oblige all men but it has a more comprehensive meaning, which is antecedently to any human institution, this holds very carefully illustrated by foreign jurists. By the the noblest place, that no man hurt another, and that Roman law, damage meant an offense against propin case hurt or damage done by him, he fail not to | erty or estate, whether it consisted of lande, goods, make reparation. Inter officia absoluta, seu, quorum- or any other property; yet it has a more extensive libet, erga quoslibet, primum locum obtinet ne quis signification, and includes an express loss, detrialterum ladat; from which this consequence is ment or prejudice; so that he who by negligence, deduced, that they who cause damage, whether it or imprudence, or by the act, negligence, or imbe by contracting some engagement, or failing in prudence of those for whom he is responsible, inthe performance of it, are obliged to repair the dam Hicts damage on another, is obliged to make comage which they have done; si cui sit ab altero lasio pensation to the injured party. illata, dumnunde datum ullo modo, qui ipsi recte The derivation of the word damnum is this: Dampotest imputari, id, quantum fieri potest, ab eodem num, forte a demendo dictum. Ita Varro, de Lingua esse sirciendum. Puffendorf, de officio hominis, Lib. Lat. Lib. 4, page 41. Damnum a demptione, cum 1, cap. 6, $$ 3 and 4. So, also, Domat; c'est une minus re factum, quam quanti constat, alii magis suite naturelle de toutes les espèces d'engagemens | probant derivari a Græco danavn, ut sid dapnum, particuliers, et de l'engagement de ne faire tort à deinde damnum, ut vnV05, sopnus, somnus. Nec personne, que ceux qui causent quelque dammage, absurde deducas a Græco, dauvw, quod est, piasm, soit pour avoir contrevenu à quelque engagement, aut ex Equiæ, damia damnum, ut regia, regnum. ou pour y avoir manqué, sout obligés de réparer le Grotius' Lib. 2, cap. 17, § 2, in note. La première de tort qu'ils ont fait. Domat, Liv. 3, Titre 5.
ces etymologies, est celle que donnent les jurisconsulDamage, in its general sense, is synonymous with tes comme on l'a remarqué: damnum et damnatio, ab injury, and means a wrong for which indemnity ademptione et quasi deminatione patrimonii, dicta is to be made; but as they each have a specific and sunt. Ibid, Traduction par Barbeyrac, Lib. 2, cap. technical meaning, they require an examination as | 17, § 2, in note. Damnum generaliter significat to their scientific sense. Injury, injuria, is an act | omnem detractionem rei aliena, sive illa lucri causa done contrary to the rule of justice, which rule is fiat, sive nullius lucri gratia et sive salvis rebus, sive Jus, in its primary signification. Jus, in its first and peremptes aut corruptes. Nam damnum ab adempprimitive sense, is Justiciwe Regula, or id quod lex | tione et quasi deminatione patrimonii dictum est. præcipit. Taylor's Civil Laws, 41 and 49. Quicquid | Again, damnum generaliter significat omnem deminationem rei alienæ. Vinnii, Lib. 4, title 3, and in things. Ibid. 117. In a certain sense, costs are note. Damnum est damnatio ab ademptione et damages to the plaintiff, for by them res sue dimiftquasi diminutione patrimonii dicitur. Calvin's uitur; hence it is sometimes stated that as damages Lex. Jurid, art. Damnum. Damnum, aliquid invitis imply costs, they fall under nomen generale of damvere demit. Et datur vero damnum in rebus, puta | ages, and in contemplation of law are included in vita et fortunis nostris. Fortuna vero cetera therein. Bac. Abr., Tit. Damages, Phillips v. Bicon, bona omnia ac res complectuntur, quæ sunt in pat 9 East, 298; Jenkin's Cent, 336; Datenant v. Rattir, rimonia, vel sperantur, ut hæreditas, fructus. Gund. | 3 Salk. 214. In this sense they include interest. lingius, Jus paturos a gentium, cap. 8, 9:2, 6 and 15. | Holdipp v. Otray, 2 Saund. 107; Blackmore v. FlemPutfendorf gives the following comprehensive defi ing, 7 Term, 447; Philip v. Bacon, 9 East, 298 and nition of the word: Damnum, etsi proprie ad rerum 304. Damages and eosts, however, are essentially læsionem pertinere videatur; a nobis tamen ita laxe different matters; the former being in the nature of accipietur ut omnem læsionem, complectatur, quos | indemnity for a wrong, and the latter the expenses etiam ad corpus, formam, pudicitiamque hominis incurred in legally obtaining reparation. Costs, spectat, adeoque nobis id notat omnem læsionem, cor costages, are derived from consteo, and that from ruptionem, diminutionem, aut sublationem ejus, constare ; for these custages must constare to the court quod nostrum jam est, aut interceptionem ejus, quod to be legal costs and expenses. 2 Co. Inst. 288. It ex jure perfecto debebamus habere; sive id datum sit may be remembered here, that the common law gave a natura, sive accedente facto humano aut lege attri costs in no case, and that the Statute of Gloucester butum; sive denique, omissionem aut denegationem gave them only where damages were recoverable at alicujus præstationis, quam nobis alter ex obliga common law. K'neas V. The Schuylkill Bank, 4 tione perfecta exhibere tenebatur. Puffendorf's Wash. C. C. R. 106. Lib. 3, cap. 1, $ 3. Again: est et hoc circa æstima Domat reduces all sorts of indemnification to two tionem damni observandum, quod sub illam veniat kinds, according to the distinction commonly olnon modo ipsa res nostra, aut nobis debita, quæ served by continental jurists, interest and damages, læditur, perditur, aut intercipitur; sed etiam fruc and interest. Toutes les sortes de dédommagemens tus, qui ex ipsa re proveniunt, sive jam sint percepti se reduisent à deux espèces; l'une qu'on appelle (quamquam hi jam per se æstimari possint tanquam simplement intérêt, et l'autre, qu'on appelle dampeculiares res), sive adhuc sperentur, si modo dom mages et intérêts. L'intérêt est le dédommageinus eos percepturus fuerat; deductis tamen impen- ment, et le desintéressement dont un debiteur sis, quæ ad fructuum perceptionem fuerant necessarie; d'une somme d'argent peut être tenu envers son ne cum aliena jactura locupletiores fiamus. Æstima- | creancier, pour le dommage quil peut lui causer, tio autem fructuum speratorum intenditur vel remit faute de payer la somme qu'il doit. * * * Tous titur, prout hi longius aut proprius a fine incerti les autres dédommagemens, de quelque nature que proventus remoti fuerint. Sic minoris erit æstimanda soit le dommage, s'appellent dommages et intérêts. messis in herba perdita, quam quæ jam maturis Domat, Lib. 3, title 5. By damage and interest, is flavescit aristis. Quin et civilium, quos vocant, understood the loss which any one has sustained, fructuum habenda erit ratio (v.g.). Qui alterius and the profit which he might have made. Quantun aedes incenderit, non solum eas instaurare tenetur, mea interfecit; id est quantum mihi debet, quantuin sed et reparare pensiones, quæ ex illis interea poter que lucrari potuit. Pothier on Obligations, by Evans, ant percipi. Puffendorf's Lib. 3, ch. 1, $ 3.
part 1, c. 1, art. 3; Institutes of the Law of HolAccording to the theory of Grotius, the rights due | land, by Van Der Linden, translated by J. Henry. to us arise from three sources: contract, injury and Esq., London, 1828, page 198. Les dommages, inlaw; to every act of commission or neglect, re | térêts sont l'indemnité ou dédommagement qui est pugnant to the duties required from all men, either dû par suite de cette responsabilité à la personne à from their common nature, or particular calling, he laquelle on a causé le préjudice; ils s'appliquent applies the name of crime or misdemeanor. Such of non seulement à la perte qu'elle aurait soufferte, fenses create an obligation to repair the loss or mais encore à la privation du cain qu'elle aurait pu injury which has been sustained, and he intends by faire, Carré-Procédure Civile, Tom. 2, p. 497; ist loss a diminution of that which any person pos Part Liv. 5, Titre 2. Le mot dommage, employé sesses, whether it be a right denied to him from the seul, signifie l'indemnité due pour un prejudice déja law of nature, or from the addition of human au souffert, et let mot intérêt, celle de la perte d'un guin thority, that is from the law of property, contract, dont on est privé l'une et l'autre indemnité. Quanor civil law. Damnum, forte a demendo dictum ; tum nobis abest, quantumque lucrari potest. Ibid. est to alarov, cum quis minus habet suo, sive illua p. 199, in note. suum ipsi competit ex mera natura, sive accidente facto Les dommages et intérêts consistent dans l'indemhumano, puta dominio, aut pacto, sive ex lege. Grotius nité de la perte qu'on a soufferte, et du gain qu'on de jure Belli ac Pacis Lib. 2, chap. 17, & 2 and 3. a mangué de faire; c'est la définition qu'en donne le Dainnum, in its proper and general signification: jurisconsulte, Paul; Quantum mea interfuit, id est, dicitur a demendo, cum diminutione res deterior fit. quantum mihi abest, quantumque lucrari potui. Leg. Pelford's Case, 10 Rep. 115. It has in law two sig. 13, f.f. rem. nat, bab; Touillier, Droit Civil Francais, nifications, the one properly and generally, the other | Paris ed., 1842, Tome 6, Liv. 3, tit. 3, cap. 3, § 3. relatively ; properly, as in cases wherein damages | Dommage intérêts; c'est l'indemnité de la perte are founded upon the statutes where costs are in q'une partie a faite, et du gain qu'elle a manqué de cluded, and taken as damages; relatively, when the faire. Le prejudice éprouvé résulte, ou d'un fait plaintiff declares for the wrong done to him to the nuisible, independent de toute convention, ou d'une damage of a specific sum; in such case the damages exécution d'une convention. Dalloz's Dictionaire are assessed by reason of the previous trespass, and de Jurisprudence; Finley v. Bredlvre, 1 Martin, 110. do not extend to the costs, which are future, and of C'est l'indemnité ou le dédommagement qu'on doit another nature. So that damages and costs, damna à la personne a qui l'on a causé quelque prejudice. pro injuria illuta, and expensæ litis, are two distinct | Merlin's Repertoire, art. Dommages et intérêts.
UNITED STATES SUPREME COURT ABSTRACT. man v. Simonds, 20 How. 365; Collins v. Gilbert, 4 Otto,
754; Noxon v. De Wolf, 10 Gray, 316; Mayer v. Badger, FIRE INSURANCE.
34 N. Y. 249. Accordingly held, that an agreement made Insurable interest : government tax : transfer of own
at the time of the making or indorsement of a negoership.-The firm of T. & Co. owned certain whisky
tiable instrument was not admissible in an action and were also liable as sureties for the tax due upon
upon such instrument by a bona fide purchaser for value the whisky which was payable by D. The G. Insur- before maturity. Judgment of Supreme Court of Dis. ance Co. insured T. & Co. against loss upon whisky | trict of Columbia affirmed. Brown, plaintiff in error,
7 them, etc., "including government tax v. Spofford. Opinion by Clifford, J. thereon for which they may be liable." There was a 2. Prior knowledge necessary to impeach title of bona provision in the policy making it void “if the property fide holder.-In such an action the settled commercial be sold or transferred, or any change take place in title
red, or any change take place in title rule is, that nothing less than prior knowledge of such or possession, whether by voluntary transfer or other-far
facts and circumstances as impeach the title is available wise." The firm of T. & Co. were, without notice to
as a defense unless it be shown that the instrument the insurance company, changed, one partner with
was fraudulent in its inception. To impeach the drawing and a new one coming in, after which the title of a holder for value, it must first be shown that whisky was destroyed. Held, that the liability of the he had
he had knowledge of the circumstances at the time the original firm of T. & Co. for the tax was an insurable transfer was made. Goodman v. Simonds, 20 How. interest and that it was not affected by the change in | 366: Collins v. Gilbert, 4 Otto, 758. Ib. partners, and the company could not avoid liability for 3. Unperformed agreements no defense.-Agreements the loss under the provision making the policy void
unperformed cannot be pleaded in accord and satisin case of a change of ownership. Firemen's Ins. Co. | faction. United States v. Clark, Hemp. 317; Early v. v. Powell, 13 B. Monr. 321; Gordon v. Mass. Ins. | Rogers. 16 How. 608: Clark v. Brown. 22 Wall. 273. Ib. Co., 2 Pick. 249; Roderback v. Germania Ins. Co., 62
1. Jurisdiction of Supreme Court : when juigment will in error, v. Thompson. Opinion by Miller, J.
be affirmed.-The Supreme Court has no jurisdiction
to revise the action of an inferior court upon the quesINDIAN COUNTRY.
tion of granting or refusing a new trial, and the final 1. What territory is not.-All the country described | judgment of such court cannot be examined through by the first section of the act of June 30, 1834 (4 U, S.
its rulings upon that question. If, when the final Stat. 729), as Indian country, remains Indian country judgment is brought here for review by writ of error, so long as the Indians retain their title to the soil, and
no other documents are presented for consideration ceases to be Indian country whenever they lose that | than such as were before the inferior court upon the title in the absence of any different provision by treaty application of a new trial, this court cannot look into or by act of Congress. American Fur Co. v. United them, and if error is not otherwise disclosed by the States, 2 Pet. 358; United States v. Forty-three Gallons record, the judgment will be affirmed. Judgment of Whisky, 3 Otto, 188. Judgment of Supreme Court of
Supreme Court of Utah affirmed. Kerr, plaintif in Dakota affirmed. Bates, plaintiff in error, v. Clark.
error, v. Clampitt. Opinion by Field, J. Opinion by Miller, J.
2. What Supreme Court will not examine: errors not 2. Seizure of property by military officer on terrilory / appearing on the record.-This court must have before not Indian country.-Whatever may be the rule in it a bill of exceptions, or what is equivalent to such time of war and in the presence of actual hostilities, bill, upon which the final judgment of the court below military officers can no more protect themselves in was reviewed, or it will not examine into any alleged time of peace than civilians for wrongs committed un
| errors except such as are otherwise apparent on the der orders emanating from a source which is itself face of the record. Sparrow v. Strong, 4 Wall. 581; without authority in the premises. Hence a military Casgrove v. Hovland, 24 Cal. 457; Carpenter v. Wilofficer seizing liquors supposed to be in Indian comu liamson, 25 id. 154. Ib. try when they are not, is liable to an action as a tres
SPECIFIC PERFORMANCE. passer. Ib.
1. Certainty in contract essential in action for enforce3. Rule of damages.-The difference between the
ment.-A contract for the coureyance of lands, which value of the goods so seized, at the place where they
a court of equity will specifically enforce, must be cerwere taken and the place where they were returned to
tain in its terms, and the certainty required has refer. the owners, is the proper measure of damages. Ib.
ence both to the description of the property and the NEGOTIABLE INSTRUMENT.
estate to be conveyed. Accordingly, where the prop1. Presumption of ownership from possession : bona erty could not be identified, specific performance was fide holder without notice not affected by agreements be- denied. Decree of U. S. Circ. Ct., W. D., Virginia, tween maker and indorser and former holder.-Promis- aflirmed. Preston, Jr., appellant, v. Preston. Opinion sory notes payable to order may be transferred by in- / by Field, J. dorsement, or when indorsed in blank or made payable 2. Waiver by party seeking enforcement.- Where one to bearer they are transferable by mere delivery, and having such a contract permitted the other party to the possession of such an instrument indorsed in blank execute a deed of trust of the lands to a trustee to or made payable to bearer is prima facie evidence secure certain indebtedness, with a power to sell them that the holder is the proper owner and lawful pos if necessary for the payment of such indebtedness, sessor of the same; and nothing short of fraud, not held, that he had waived his right to the conveyance, even gross negligence, if unattended with mala fides, or, at least, had subordinated it to the interest of the is sufficient to overcome the effect of that evidence or trustee and the purchaser under him. Ib. to invalidate the title of the holder, supported by that 3. What constitutes laches.-The delay of a party in evidence. Goodman v. Harvey, 4 Ad. & E. 70; Good- | taking proceedings to enforce such a contract for a