Imágenes de páginas

embrace this case."

Courts of equity might adjudge the conveyance void, agent in his own name for the purchase of land, be but the right of homestead would still exist in the enforced as the simple contract of the real principal debtor. The precise question was so decided in the when he shall be discovered? No authority for this following cases: Cox v. Wilder, 2 Dillon's C. C. 45; broad proposition has been cited. There are cases Smith v. Kehr, id. 50; Bartholomew v. West, id. 290; which hold that when a sealed contract has been exeDreutzer v. Bell, 11 Wis. 114; Sears v. Hanks, 14 Ohio cuted in such form, that it is, in law, the contract of St. 298.

G. W. A. the agent and not of the principal, but the principal's OMAHA, July, 1877.

interest (?) in the contract appears upon its face, and

he has received the benefit of performance by the LIABILITY OF A PRINCIPAL UPON A SEALED

other party and has ratified and confirmed it by acts

in pais, and the contract is one which would have been CONTRACT.

valid without a seal, the principal may be made liable

in assumpsit upon the promise contained in the inBRIGGS V. PARTRIDGE, 64 N. Y. 357; AFFIRMING 39

strument, which may be resorted to to ascertain the N. Y. SUPERIOR CT. 339.

terms of the agreement. * * * We find no authorTHE doctrine is established in this and other States ity for the proposition (then you should have considI that where an agent is authorized by parol to contract ered it on principle), that a contract under seal may be for his principal, and executes the agreement under turned into the simple contract of a person not in any seal, such agreement, if valid without a seal, is binding way appearing on its face to be a party to or interon the principal as a simple contract. Lawrence v. Tay ested in it, on proof dehors the instrument, that the lor, 5 Hill, 113; Warrall v. Munn, 5 N. Y. 229; Stowell nominal party was acting as the agent of another, and v. Eldred, 39 Wis. 614; Dickerman v. Ashton, 21 Minn. especially in the absence of any proof that the alleged 538; Minor v. Willoughby, 3 id. 225. Cowen, J., in principal has received any benefit from it, or has in speaking of a specialty executed by an attorney with any way ratified it, and we do not feel at liberty to out authority under seal, says: “Yet in such case it extend the doctrine applied to single contracts, exedoes not follow that it shall not operate at all. If the cuted by an ageut for an unnamed principal, so as to contract may be made without deed, the seal shall not prevent its inuring as a simple contract, though the The authorities do not make the qualification, that authority be by parol, or merely implied from the rela- the name of the principal must appear in the instrutions between the principal and agent." 5 Hill, 113. ment, or that he must have received some benefit, or As the agent had no authority to affix a seal to the in- ratified and confirmed it by acts in pais, but they state strument, which would be effectual without one, the the proposition broadly, that if the instrument would instrument will be good as a simple contract.

be valid without a seal, the addition of a seal will not The doctrine is also settled in this State, and is sup- prevent its inuring as a simple contract; being affixed ported by high authority elsewhere, that a principal | without authority, it is to be disregarded and treated as may be charged upon a written parol executory con surplusage. Indeed, the mere fact that the principal's tract entered into by an agent in his own name, within name was disclosed in the writing, and he received his authority, although the name of the principal does the benefit of performance by the other party, would not appear in the instrument, and was not disclosed, not change the nature of the contract nor dispense and the party dealing with the agent supposed that he with the necessity of proving an authority under seal. was acting for himself; and this doctrine is applicable Is the contract in this case to be considered as a simto contracts which are required to be in writing, as to ple contract or a specialty? If the former, then it those where a writing is not essential to their validity. is not essential that the principal's name should apPer Andrews, J., in Briggs v. Partridge, 64 N. Y. pear in the instrument. If the latter, then the rule 362.

is strict, that the instrument must be executed in the Therefore, where an agent is authorized by parol to name and as the act or deed of the principal, and the contract for his principal, and executes the agreement agent's authority must be under seal. If these rein the name of his principal under seal, or, in his own quirements are not complied with the principal is not name, but disclosing, or not disclosing, the name of liable, at least upon the instrument; and it is difficult the principal on the face of the instrument, in either to see how, or upon what principle of law, he can be case the agreement inures as a simple contract, and charged with liability for benefits received under the parol evidence is admissible to charge the principal contract. It is not his contract, and cannot, therethereon, even though he has not received any benefit fore, be admitted in evidence. He cannot be charged therefrom. Is not thiş a logical conclusion from the upon au implied contract, for another party expressly premises? Is not the contract, in either case, to be contracted to pay for the benefit received, and it is a considered as a simple contract? Are they not founded general rule that a contract will not be implied where on the same reasons, and should they not be gov an express one is made. In order to charge the prinerned by the same rule? In either case the agent cipal with liability, the instrument must be regarded had no authority to affix a seal to the agreement as a simple contract. We are aware that it has been and it was not essential to its validity; therefore, in held by learned courts, that where an instrument is either case, the instrument inured as a simple con not properly executed in the name of the principal, so .tract. If the contract is to be considered as a contract as to charge him thereon, he may be held liable upon not under seal, then the rules applicable to those con the common counts for goods sold and delivered, and tracts are to govern. But if it is to be considered as the written contract may be received in ovidence, a specialty, then the rules applicable to specialties are “not as a basis of recovery, but to show that it was to govern. This question has been considered by the void”! 22 Barb. 143. Or, in other words, the “princiCourt of Appeals in the case under consideration. pal may be made liable, in assumpsit, upon the promWe will quote from the opinion of the court, by An ise contained in the instrument, which may be resorted drews, J.: “Can a contract under seal, made by an 'to to ascertain the terms of the agreement." That is



to say, the contract is not his contract, he is not liable to authors or inventors the exclusive right to their upon it, and it cannot be used as a basis of recovery, respective writings, inventions, and discoveries; and but the judge may look at it sideways or through his upon any bill in equity, filed by any party aggrieved fingers so as to ascertain the terms of the agreement. in any such cases, should have authority to grant Such nice distinctions in the law must make the ju injunctions, according to the course and principles of dicious grieve, if they do not make the injudicious courts of equity," etc. smile. If the principal cannot be charged upon the This law was substantially re-enacted in the sevenwritten contract, then it is inadmissible against him teenth section of the patent law of July 4th, 1836, and for any purpose whatever. If the principal is not lia the fifty-fifth section of that of July 8th, 1870, special ble upon it, he cannot sue upon it without taking an powers to assess damages in equity cases being also assignment. Where agents or officers of a corporation | conferred by the latter act. affix their own seals to their signatures, and not the Before the aot of 1819 was passed, the Circuit Courts seal of the corporation, the latter may be charged in had cognizance of actions at law brought to recover an action of assumpsit. 19 Johns. 60; 4 Wend. 285. damages for the infringement of patents, but not of The fallacy of the learned judge's argument consists suits in equity in relation thereto unless the parties in this, that the instrument is a specialty, when it is happened to be citizens of different States. Phillips on not such. Even though the contract was properly exe Pat. 379; Livingston v. Van Ingen, 1 Paine, 54; Sullicuted in the name of the principal, he could not be van v. Redfield, id. 447. Under that act and the subsecharged, the agent's authority not being under seal. quent acts in which it became incorporated, bills in We state our propositions thus: If an agent affixes a equity for injunction, discovery, and account have seal to an instrument, without authority, and the in constantly been sustained, frequently without any strument does not require a seal, it will inure as a sim previous action at law. As said by Mr. Justice Grier ple contract. An agent without authority affixed a in a case decided at the circuit, “It is true that in seal to the instrument, and the instrument would be England the chancellor will generally not grant a final effectual without one; therefore, the instrument inured and perpetual injunction in patent cases, when the as a simple contract. We have not made a critical | answer denies the validity of the patent, without sendexamination and study of all the authorities, but we | ing the parties to law to have that question decided. think that the principles and analogies of the law lead But even there the rule is not universal; it is a practo the conclusion that the instrument in this case | tice founded more on convenience than necessity. It inured as a simple contract, and that, therefore, the always rests in the sound discretion of the court. A principal is liable thereon. It was also observed, in trial at law is ordered by a chancellor to inform his this case, that “persons dealing with negotiable in- conscience, not because either party may demand it strumeuts are presumed to take them on the credit as a right, or that a court of equity is incompetent to of the parties whose names appear upon them; and a judge of questions of fact, or of legal titles. In the person not named thereon cannot be charged upon United States, the practice is by no means so general proof that the ostensible party sigued or indorsed as as in England." Goodyear v. Day, 2 Wall. C. C. R. his agent." Perhaps there are as many authorities in 296. Subsequently, in the case of Sickles y. Gloucester this State against this doctrine as there are in favor Manufacturing Co., 3 Wall. C. C. R. 196, the same judge of it. "If the law be a science and really deserves so said: “The courts of the United States have their sublime a name, it must be founded on principle and | jurisdiction over controversies of this nature by statclaim an exalted rank in the empire of reason." ute, and do not exercise it merely as ancillary to a

F. P. M. court of law.” And after quoting the statute, he pro

ceeds: “Having such original cognizance * * * JURISDICTION OF EQUITY IN ACTIONS FOR the courts of the United States do not, in all cases,

INFRINGEMENT – PATENTABILITY OF A require a verdict at law on the title, before granting a PROCESS.

final injunction, or concede a right to every party to THE case of Cochrane et al., appellants, v. Deener et have every issue as to originality or infringement tried 1 al., decided at the late term of the Supreme Court by a jury." of the United States, was a suit in equity, instituted The position of Justice Grier is undoubtedly true, in the Supreme Court of the District of Columbia that, whether a case shall be first tried at law is a for injunction and relief against an alleged infringe matter of discretion, and not of jurisdiction; and, ment of various patents belonging to the complain in this matter, the courts of the United States, ants. The bill was dismissed, and the complainants sitting as courts of equity in patent cases, are much appealed.

less disposed than the English courts are, to send A preliminary question is raised with regard to the parties to a jury before aosuming to decide upon the jurisdiction of the court below to hear the case on a merits. bill in equity, before a determination of the rights But the counsel for the defendants suggest that the of the parties in an action at law.

Revised Statutes have not preserved, in entirety, the The powers of the Supreme Court of the District of previous enactments on this subject; but have omitted Columbia, in patent cases, are the same as those of the the vesting of original cognizance in the Circuit Courts Circuit Courts of the United States. See Revised sitting as courts of equity in patent cases. From a Statutes relating to the District of Columbia, sec careful consideration, however, of all the sections of tions, 760, 764.

the Revised Statutes on the subjeot, we think that no The Circuit Courts were first invested with equity intention levinged to paky any change in the law. jurisdiction in patent cases by the act of February 15, The original enactments are separated into distinct 1819, which declared that these courts should have parts, and somewhat coudensed; but the substance of "original cognizance, as well in equity as at law, of all them is r ued. By section 6:29, the Circuit Courts actions, suits, controversies, and cases, arising under are in; ith jurisdiction, among other things, any law of the United States, granting or confirming “Ninth,

o r at law or in equity arising under the patent or copyright laws of the United States." were known to the creditor securing the preference as And by section 4921, it is declared, that “the several clearly ought to have put a prudent man upon inquiry, courts vested with jurisdiction of cases arising under it must be held that he had reasonable cause to believe the patent laws shall have power to grant injunctions that the debtor was insolvent, if it appears that he according to the course and principles of courts of might bave ascertained the fact to be so by reasonable equity," etc., following precisely the language used in inquiry. Scammon v. Cole, 5 N. B. Reg. 263; Wilson the act of 1870, the last previous revision of this branch v. City Bank, 17 Wall. 487. In regard to the main of the law. The grant of jurisdiction is as broad and question, the court said: It is insisted by the regeneral as it could well be, and the mode of exer spondents that the notes, accounts and property were cising it is prescribed in precisely the same terms as not assigned to them within four months before the in previous statutes.

petition in bankruptcy was filed in the District Court One of the questions raised was as to the patentabil | by the insolvent debtor. Both parties agree that the ity of a process independent of the instrumentalities petition in bankruptcy was filed April 8, 1870, and it employed in effecting it. The court said that a pro appears both by the bill of complaint and the plea cess may be patentable irrespective of the particular filed by the respondents that the notes, accounts and form of the instrumentalities used, cannot be dis property were assigned by the bankrupt to the reputed. If one of the steps of a process be that a cer spondents the 8th of December of the preceding year. tain substance is to be reduced to a powder, it may Undisputed as the facts are, the decision must turn not be at all material what instrument or machinery upon the construction of the bankrupt act. 14 Stats. is used to effect that object, whether a hammer, a at Large, 534; Rev. Stats., & 5128. pestle and mortar, or a mill. Either may be pointed Taken literally it might be suggested that the phrase, out, but if the patent is not confined to that particu- "four months before the filing of the petition," would lar tool or machine, the use of the others would be an exclude the day the petition was filed, fractions of a infringement, the general process being the same. A day being forbidden in such a computation; nor process is a mode of treatment of certain materials to would it benefit the respondents if the rule prescribed produce a given result. It is an act, or a series of acts, by section 5013 of the Revised Statutes should be apperformed upon the subject-matter to be transformed plied, which is that in all cases in which any particuand reduoed to a different state or thing. If new | lar number of days is prescribed in that title, or shall and useful it is just as patentable as is a piece of be mentioned in any rule, or order of court, or genmachinery. In the language of the patent law, it is eral order which shall at any time be made under the an art. The machinery pointed out as suitable to same for the doing of any act or for any other purperform the process may or may not be new or patent- pose, the same shall be reckoned, in the absence of any able; whilst the process itself may be altogether new, expression to the contrary, exclusive of the first and and produce an entirely new result. The process inclusive of the last day. requires that certain things should be done with | Where the phrase to be construed does not contain certain substances and in a certain order; but the any expression to the contrary the enactment is that tools to be used in doing this may be of secondary that rule shall apply, leaving it to be understood that consequenoe.

the phrase to be construed may contain words pre

scribing its own rule in that regard, and that, if it COMPUTATION OF TIME IN BANKRUPTCY

contains any inconsistent expression to the contrary,

the rule prescribed in that section shall not necPROCEEDINGS.

essarily control the meaning of the phrase to be conIn the case of Dutcher et al., appellants, v. Wright, strued. 1 assignee, decided by the Supreme Court of the Apply that qualification to the rule prescribed in United States at its recent term, a question as to the seotion 5013 and still it might be suggested that the computation of time under the bankrupt law came meaning of the phrase, “within four months before up. It was shown that appellants had secured a trans- the filing of the petition," is entirely consistent with fer of property from respondent's assignor in fraud of that rule. the bankrupt law, and the dispute was whether the Unless the day when the notes, accounts and property petition in bankruptcy was filed within the statutory | were assigned and the day when the petition in bankfour months. The court first defines what constitutes ruptcy was filed are both included in the computation, insolvency under the act, saying: Insolvency in the the defense fails and the complainant is entitled to sense of the bankrupt aot means that the party whose an affirmance of the decree. Neither argument or business affairs are in question is unable to pay his authority is found in the brief of the respondents debts as they become due, in the ordinary course of supporting any such rule of construction, and it is behis daily transactions; and a creditor may be said to lieved that no decided case can be referred to, where have reasonable cause to believe his debtor to be in such a theory was ever adopted. Decided cases may solvent, when such a state of facts is brought to his be found in which it is held, where an act is required uotice respecting the affairs and pecuniary condition by statute to be done a certain number of days at least of his debtor as would lead a prudent man to the con- before a given event, that the time must be reckoned clusion that the debtor is unable to meet his obliga excluding both the day of the act and that of the tions as they mature, in the ordinary course of his event. The Queen v. The Justices, 8 Ad. & Ell. 173; business. Buchanan v. Smith, 16 Wall. 308; Toof v. Zouch v. Empsey, 4 Barn. & Ald. 522; Mitchel v. FosMartin, 13 id. 40.

ter, 12 Ad. & Ell. 172. Reasonable cause for such a belief cannot arise un Search has been made in vain for a decided case in less the fact of insolvency actually existed, but if it which it is held that both the day of the act and the appears that the debtor giving the preference was ac- day of the event shall be included in the computation tually insolvent, and that the means of knowledge in order to ascertain the specified period of time. were at hand, aud that such facts and circumstances Cases may be found in which it is held that where the computation is to be made from an act done, the day | such sale should be left to the jury. Sup. Ct., Pennon which the act is done is to be included. Arnold sylvania Rhoads v. Blatt, 16 Nat. Bankr. Reg. 32. v. United States, 9 Cranch, 120.

ATTACHMENT. Exceptions undoubtedly exist to that rule, and it Lien of attachment issued under laws of Vermont.-must be admitted that there are many cases in which

Under the laws of Vermont an attachment of a debt it is held that the last day is included and that the

by trustee process creates a lien on the funds in the first is excluded.

hands of the trustee after service upon him, although Speaking of the conflict of judicial decision upon

no notice is given to the principal debtor. Such lien the subject, Lord Mansfield said that the cases for

is a lien by attachment by mestie process and will be two hundred years had only served to embarrass a

saved when made the prescribed length of time before point which a plain man of common sense and under

the commencement of the proceedings in bankruptcy. standing would find no difficulty in construing, and

U. S. Dist. Ct., Vermont. In re Peck, 16 Nat. Bankr. he came to the conclusion that courts of justice ought

Reg. 43. to construe the words of parties so as to effectuate

JURISDICTION. their deeds and not destroy them, and that “from the State court and bankrupt court: habeas” may, in popular use and even in strict propriety Where a decree operating as a lion upon defendant's of language, mean either inclusive or exclusive. Pugh estate has been obtained in a State court, and the dev. Leeds, Cowper, 714.

fendant afterward goes into bankruptoy, proceedings Special reference was made to that decision in the under State statute will not lie before a State officer case of Griffith v. Bogert, 18 How. 163, in which this against defendant for discovery of his estate similar court held to the effect that the general rule is to treat to those given by section 5086 of the Revised Statutes the day or terminus a quo from which the period of time of the United States; they must be taken in the bankis to be calculated, as inclusive, and they applied that rule in the decision of that case, but they remarked fore a State officer, and the bankrupt is imprisoned by in the opinion that "every case must depend on its | him, he will be released on habeas corpus by a United own circumstances." Thirty years before that the States court, where the decree of the State court is not Supreme Court of New York decided that it was the for a fiduciary debt of the bankrupt. Section 5117 does practice of that court, where an act is to be done not embrace the surety in a guardian's bond among within a specified number of days, to consider the those not released by a discharge in bankruptcy. U. day on which notice is given and the day on which the S. Ciro. Ct., E. D. Virginia. Ex parte Taylor, 16 Nat. act is to be done, the one inclusive and the other exclu- | Bankr. Reg. 40. sive, without any particular designation that the one or the

PARTNERSHIP other shall be exclusive. Gillespie v. White, 16 Johns.

1. Sale of interest of partner on execution : what is 120.

partnership property.-The sale on execution of either Three of the courts of England, to wit, the King's

or both the partners' interest in the joint assets Bench, the Common Pleas, and the Exchequer, forty

gives to the purchaser only an interest in such asfive years ago adopted the following rule to regulate

sets as may remain after the payment of the partthe practice in those courts: “That in all cases in nership debts. The fact that the interest of both which any particular number of days, not expressed

partners were sold on separate executions to the same to be clear days, is prescribed by the rules or practice

purchaser can have no effect to enlarge the interest of of the courts, the same shall be reckoned exclusively

either partner acquired by such purchaser on the sepof the first day aud inclusively of the last day, unless

arate sale of such interest, nor to discharge the assets the last day shall happen to" be dies non in legal con

from liability for the partnership debts. Premises omplation. 8 Bing. 307.

used by partners for the purpose of carrying on their Repeated attempts have been made to settle the business prima facie form part of the partnership question, but different rules still prevail in different property; but this presumption may be rebutted. U. jurisdictions.

S. Dist. Ct., California. Osborn v. McBride, 16 Nat. Due weight in every case should be given to the

Bankr. Reg. 22. words of the phrase to be construed, and by so doing

2. Partners in two firms: former adjudication.—The many of the reported cases otherwise seemingly in

fact that persons have been adjudicated bankrupts as consistent may be satisfactorily reconciled. Still it

members of one firm is no bar to nor does it defeat a must be admitted that it is difficult, if not impossible,

petition against them as partners with others in to deduce from the reported decisions any rule which

another firm. As to whether the individual propwill apply in all cases, nor is it necessary to make the

erty of such persons should go to pay the debts of the attempt in this case, as the court is unanimously of

former or of the latter firm, quære. U. 8. Circ. Ct., the opinion that the day the petition in bankruptcy

W. D. Wisconsin. In re Jewett & Co., 16 Nat. Bankr. was filed must be excluded in making the computa

Reg. 48.

PRACTICE. tion, and that the decree of the Cirouit Court is cor

Confirmation of sale.-Under the rules of practice rect. Rev. Stats., & 5013.

in the District of Maine the United States District

Court for that district will not confirm any sales made RECENT BANKRUPTCY DECISIONS.

by an assignee, but will leave the purohaser to estab

lish his title whenever the occasion may arise. U. S. What it passes : badge of fraud.--An assignment for

| Dist. Ct., Maine. In re Alden, 16 Nat. Bankr. Reg. 39. the benefit of creditors of “ all the goods, chattels and

PREFERENCE. effects and property of every kind, personal and Exchange of securities, when not.-The exchange of mixed," does not pass the real estate to the assignee. a mortgage for notes, in pursuance of a parol contract In a sale by an insolvent vendor, ipadequacy of price that such mortgage should be given when the creditor is evidence of fraud, and the question of fraud on I asked for it, is not a preference under the provisions


of the bankrupt act, although made within four containing the names of stockbolders within thirty
months before the commencement of bankruptcy days previous to any election of directors. Appeal
proceedings. N. Y. Sup. Ct., 3d Dept. Hewitt, us dismissed. Matter of Sage v. Lake Snore & M. S. Ry.
signee, v. Northur, 16 Nat. Bankr. Reg. 27.

Co. et al. Opinion per curiam.

2. Rights of stockholders to examine books: manof debt taken in foreign country.-Proof of debt can

damus: appealable order.-The statute last mentioned only be taken in a foreign country before one of the

does not deprive stockholders of a corporation of the officers authorized by section 5079 of the Revised

right to examine its transfer books for proper purStatutes to do so. U. S. Dist. Ct., S. D. New York. poses and on proper occasions at other times, and a In re Lynch et al., 16 Nat. Bankr. Reg. 38.

proceeding by mandamus may be invoked for the pur

pose of enforcing such right. But the granting or reWAIVER.

fusing a mandamus is discretionary, and an appeal Discharge in bankruptcy may be waived: position of

from the General Term does not lie to this court from assignee.---A debtor who has been discharged in bank

an order in such proceeding. Ib. ruptoy may waive the discharge and allow a judgment

[Decided June 19, 1877.) to be recovered against him for the original debt. Where the debtor has waived his discharge as a de

NEGLIGENCE. fense, it cannot be raised by one who is in possession 1. When a question for jury: contributory negligence, of property of the debtor, transferred with intent to -The Albany and Susquehanna Railroad Company, defraud creditors, in an action to set aside such trans by whom plaintiff's intestate was employed as enfer. The assignee is but a trustee for the creditors; gineer, and the New York Central Railroad Company while he holds the property a creditor may bring an had an agreement whereby at a crossing of the two action to set aside a transfer by the bankrupt as fraud lines the trains of the former were to have a right of ulent, if he makes the assignee a party; if not, the way and those of the latter to stop, and the latter defendant must set this up as a defect of parties. company had a general rule directing all those in manUpon the discharge of the assignee the property re agement of its trains to stop at tho crossing. The flagmaining in his hands reverts to the debtor without man at the crossing was in the employ of both comreassignment. N. Y Sup. Ct., 3d Dept. Dewey v. panies. A Central train approaching the crossing, he Moyer, 16 Nat. Bankr. Reg. 1.

signaled it to proceed, which it did without stopping. WITNESS.

Just then he saw the Susquehanpa train, on which Death of bankrupt : interest.-When the bankrupt is

intestate was engineer, approaching, and signaled that dead, a creditor offering himself as a witness to prove to stop. The signal was not seen. He then signaled his claim, cannot be excluded on the ground of inter- the Central train to proceed, but seeing that his signal est. The proof of debt against an estate in bankruptcy to the Susquehanna train had not been noticed, be is a proceeding in rem and not a proceeding against a displayed a danger signal to both, but too late, for a bankrupt nor against his executors or administrators collision took place and intestate was killed. Held, in in case of his death. U. S. Dist. Ct., Vermont. In an action for such death against the Central Railroad re Merrill, 16 Nat. Bankr. Reg. 35.

Company, that it was for the jury to determine

whether there was negligence entitling plaintiff to a COURT OF APPEALS ABSTRACT.

recovery on the part of defendant, or contributory

negligence precluding recovery on the part of intesACTION

tate. Judgment below affirmed. Wood, adm'x, v. N. When process does not protect sheriff: husband and Y. C. & H. R. R. R. Co. Opinion by Church, C. J. wife: another action pending.--In an action for tres- 2. Violation of rules of railroad company by empass committed by a sheriff in taking personal prop- ployees.-A refusal to charge that a violation of the erty which was in the possession of plaintiff and in rules of the defendant by its employees was not negwhich she had an interest, upon process issued in an ligence, and a submission whether such neglect in this action of replevin against another, held, (1) that the case caused the injury, and whether it was not negpapers in the replevin suit were no protection to the ligence not to be governed by the rules, held, not to be sheriff; (2) that the fact that plaintiff was the wife of error. Ib. the defendant in the replevin suit would not affect the 3. What constitutes. — The flagman knew that the matter, and (3) that the circumstance, if true, that the Susquehanna train was to be expected at any time. defendant in the replevin suit was an agent of plain He could see it three-quarters of a mile. Held, that tiff in this action would not render the provisions of a refusal to charge that if, at the time the flagman sigCode, section 216, applicable, and plaintiff would not paled the defendant's train to come on, the Susquebe affected or bound by the result of such suit. Judg hanna train was not in sight, his act was not negligent. ment below affirmed. Otis v. Williams. Opinion by Held, not error. Ib. Folger, J.

[Decided June 19, 1877.) [Decided June 19, 1877.)


1. Contracts made with : condition precedent to pay-
1. Lake Shore, etc., Railway Co. not a foreign corpora ment. - Plaintiff's intestate did work for the city of
tion : examination of transfer books by stockholders. New York in making street improvements, the ex-
The Lake Shore and Michigan Southern Railway Com pense of which was to be assessed upon the property
pany held to be a domestic and not a foreign corpora benefited. By an ordinance of the city, it was pro-
tion, and chapter 165 of the Laws of 1842 held to have vided that, in work of such a character as this, final
no application to this case but to the transfer agents payment to the contractor should not be made until
of foreign corporations only. The provisions of the the assessment for the work should have been con-
Revised Statutes (1 Edm. Stats. 558) held to apply to firmed by the common council. This ordinance was
this case and to authorize au examination of books ' referred to in, and made a part of the contract entered

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