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would not be whether the other contracting party trusted Beatson because he supposed him to be sole owner of the chemical works, but whether Beatson, whom alone he knew and actually trusted, was acting as agent for the partnership, or in his individual capacity for himself. This kind of question was raised in the case of the Bank of Scotland v. Watson, 1 Dow. 40, where the bank and its agents carried on separate banking business at the same office, and the bank was unsuccessfully sued by a person who relied in support of his claim against the bank upon a receipt which bore the address of the common office. One point only remains for decision. The verdict and judgment for the plaintiffs have been properly set aside by the court below, but is it right that the judgment entered instead for the defendant Mycock should stand? We have entertained some doubt whether the case ought not to go to another jury to be decided upon the principles laid down in this judgment; but we have come to the conclusion that the court ought not to put the parties to this expense. The case is one in which no additional facts remain to be proved, and in which upon the facts proved no jury would be justified in finding a verdict adverse to the defendant Mycock. It is one therefore in which, to use the words of rule 10 of order XL. of the General Rules of the Supreme Court, we have before us, as the court below had, all the materials necessary for finally determining the question in dispute; and in this state of circumstances we think that the judgment of the court below should stand, and that this appeal should consequently be dismissed. Judgment affirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

CONFLICT OF LAW LAW OF LOWER CANADA AS TO SALES OF CHATTELS- COMITY- WILL NOT BE EXERCISED TO DEPRIVE CITIZEN OF TITLE. - Personal property belonging to A, a citizen of New York, who had acquired title here, and situated here, was taken without the consent of A to Lower Canada, where it was purchased by B for value and without notice of the rights of A, from a trader in property of like kind, who had it in his possession. By the law of Lower Canada the purchaser of personal property from a trader in like property confers good title. B conveyed the property to defendant, who brought it again into New York, where his domicile was. In an action by A against defendant for a conversion of the property in the courts of New York, held, that the title of A was superior to that of defendant, and the title of B, acquired under the law of Lower Canada, would not be recognized. Though a transfer of personal property valid by the law of the domicile is valid everywhere, as a general principle, there is to be excepted that territory in which the property is situated and where a different law has been set up, when it is necessary for the purposes of justice that the actual situs of the thing be examined. Green v. Van Buskirk, 7 Wall. 139. Yet statutes have no extra-territorial force and where they are permitted to operate in another State through comity, they will not be so allowed to the inconvenience of the citizen or against the policy of the State. It would be to the contravention of that policy and to the inconvenience of the citizens of this State if its courts should give effect to the statutes of Lower Canada in respect to purchases from traders to the divesting of titles to movable property, acquired and held under the law of New York, without the assent or intervention, and against the will of the owner under that law. Notions of property are slight when a bona fide purchaser of stolen goods gives a good title against the original owner. Kent, C. J., in Wheelwright v. De Peyster, 1 Johus. 471. It is not required

to show comity to that extent. The case of Cammel v. Sewell, 5 H. & N. 728, was concerning property sold in Norway, which had not been in England until after that sale and had never been in possession of the English owners. See, as sustaining the case at bar, Greenwood v. Curtis, 6 Mass. 358; Taylor v. Boardman, 25 Vt. 581; Martin v. Hill, 12 Barb. 631; French v. Hall, 9 N. H. 137; Langworthy v. Little, 12 Cush. 109. Such cases as Graut v. McLachlin, Johns. 34, and The Helena, 4 Rob. Ad. 3, do not conflict. In them there were, in the foreign country, legal proceedings in rem, or analogous thereto, so that the question was as to respect for the judicial proceedings of another country. Order of General Term reversed and judgment on report of referee ordered. Edgerly, appellant, v. Bush. Opinion by Folger, C. J. [Decided June 1, 1880.]

CRIMINAL LAW -TRIAL-CHARGES AS TO WEIGHT OF EVIDENCE-ERROR. Upon the trial of an indictment for murder, in which a verdict of manslaughter in the third degree was rendered, the judge, instead of informing the jury what must be established to make out the offense, and leaving it for them to determine whether it had or had not been done, said: "Enough has been proven if you believe the witnesses on the part of the people." Held, error. The attention of the jury was thus directed to evidence of inculpation merely, its weight was stated to them as sufficient in law to sustain a conviction for murder, so that the question of fact to which their minds were turned related to the credibility of certain witnesses and not to the weight or measure of their testimony or the existence of the intent. How far that testimony was modified by that produced by the defendant or what inferences should be drawn from any of it was excluded from their inquiry. This was overstepping the province of the judge. The opinion of tho judge was calculated to make an erroneous impression upon the minds of the jurors, so that it could not bo said that the prisoner had at the outset of their deliberations an even chance that the conclusions of the jury would be unbiased. And the circumstance that the verdict was not "murder" but "manslaughter," was not sufficient to show that the charge did no harm. As the jury would feel relieved to some extent from the necessity of estimating for themselves the value of the evidence, the observation of the judge was not only erroneous but material. See Read v. Hurd, 7 Wend. 409; Fitzgerald v. Alexander, 19 id.402; Bulkeley v. Keteltas, 6 N. Y. 384; Stokes v. People, 53 id. 164. Judgment reversed. McKenna, plaintiff in error, v. People. Opinion by Dauforth, J. [Decided June 8, 1880.]

OF FEDERAL

NATIONAL BANK-CONSTRUCTION STATUTE STATE COURT HAS JURISDICTION IN ACTION AGAINST BANK IN ANOTHER STATE - ATTACHMENT AGAINST PROPERTY OF BANK.-In an action in the Supreme Court of New York against a National bank located in North Carolina, an attachment was issued and property belonging to the defendant in this State seized. The defendant objected to this proceeding on two grounds: First, that the Supreme Court has no jurisdiction; the Federal statute requiring actions against a National bank to be brought in the State where such bank is located (U. S. R. S., § 5198); and, second, that the court has no power to grant an attachment against such a corporation, that being forbidden by U. S. R. S., § 5242 Held, that the objection was not valid. In the absence of a statute conferring executive jurisdiction upon the Federal courts the State courts have the same power and jurisdiction in suits to which a National bank is a party as if it was an individual. Bowen v. First Nat. Bank of Medina, 34 How. Pr. 409; Cooke v. State Nat. Bank of Boston,

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52 N. Y. 96. A construction which would forbid suits against a National bank outside of its State would prohibit suits by it outside, as the statute extends to actions by as well as against (Kennedy v. Gibson, 8 Wall. 498), and prevents it from fully exercising the powers conferred upon it. Beside the statute (U. S. R. S., § 5136, subd. 4) declares that such a bank may sue and be sued in any court of law and equity as fully as any natural person." The provision as to local jurisdiction is to be construed as permissive, and not as mandatory, and therefore not limiting the general rule which permits civil causes arising under the laws of the United States to be prosecuted and determined in the State courts unless exclusive jurisdiction of them has been vested in the Federal courts or unless Congress has prohibited the State courts from entertaining jurisdiction of such cases. Claflin v. Houseman, 93 U. S. 130; 1 Kent's Com. 395, 396; Bank of United States v. Devereaux, 5 Cranch, 85; Osborn v. United States Bank, 9 Wheat. 738; Teall v. Felton, 1 N. Y. 537. See, also, Houston v. Moore, Wheat. 1. The general liability to sue and be sued subjects those banks to an action in any court in which an individual in like circumstances might be sued, and the subsequent enumeration of particular courts without words of exclusion cannot have the effect to deprive other courts of jurisdiction. Owens v. Woosman, L. R., 3 Q. B. 469. Otherwise a citizen of this State having a claim upon land in which a bank in another State has an adverse interest would be compelled to go there to assert his rights, which is contrary to what was decided by the U. S. Supreme Court in Casey v. Adams, 21 Alb. L. J. 376. As to the claim that the attachment is prohibited by section 5242, that section has reference to banks in an insolvent condition only, and its object is to prevent one creditor of a corporation whose assets are insufficient to meet its liabilities from obtaining a preference. Order affirmed. Robinson v. National Bank of Newberne, appellant. Opinion by Danforth, J.

[Decided June 8, 1880.]

WILL-CONSTRUCTION OF

DEVISE OF FEE.-A will contained this provision: "I give and bequeath my beloved wife Susan one-third part of all my property, both real and personal, and to have the control of my farm as long as she remains my widow, and I wish my son George to have the first privilege of carrying on the farm as my wife may see fit and proper, and at the death of my wife all my property, both real and personal, to be equally divided between my eight children. Held, to give the wife a fee in one-third of the testator's real estate, and not a life estate in such third. The residuary clause of the provision is not repugnant to the prior gift under the rule which requires a will to be so construed as to avoid, if possible, all repugnancy and give effect to all its language. There is no occasion to reject one of the clauses in order to sustain the other, a desperate remedy and to be resorted to only in case of necessity, so that one rather than both provisions should fail. Trustees, etc., v. Kellogg, 16 N. Y. 83; Van Nostrand v. Moore, 52 id. 20; Covenhoven v. Shuler, 2 Pai. 122. This case is within the rule stated in Thornhill v. Hall, 2 Cl. & F. 22, as one which admits of no exception in the construction of written instruments, that when one estate is given in one part of an instrument in clear and decisive terms such estate cannot be taken away or cut down by raising a doubt upon the extent or meaning or application of a subsequent lause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisivo as the words of the clause giving that estate. Order affirmed. Roseboom v. Roseboom et al., appellants. Opinion by Danforth, J.

[Decided June 8, 1980.]

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EQUITABLE ACTION SPECIFIC PERFORMANCE PRICE NOT DEFINITELY FIXED.-C. was indebted to a bank in a large sum; there were several judgments in its favor against him and he had a suit in chancery against it for an adjustment. An agreement in writing was made in 1846, between it and him in which, among other things, it was agreed that he should convey to it his undivided share in certain real property, after allotment in a suit for partition, which he agreed to bring, at such price as three appraisers to be appointed by the parties should estimate; such price to be credited on the judgments against him. Much of the agreement was performed, but in reference to that part relating to the partition and conveyance it was not. C. died, and subsequently his devisees, in 1866, effected a partition, which fact did not come to the knowledge of the bank until 1872. In 1876 it brought this action in equity for relief against the executors and devisees under the will of C. Held, that in such a case a court of equity might entertain an action for specific performance. While the general rule is that a court of equity cannot enforce specific performance when the price to be paid for it is not definitely fixed, and it cannot enforce an agreement to submit that price to the award of arbitrators, this case differs from those in which that rule applies. In view of a court of equity a contract for the sale of land is treated, says Justice Story, for most purposes, precisely as if it had been specifically performed. The vendee is treated as the owner of the land and the vendor as the owner of the money. The vendor is deemed in equity to stand seized of the land for the benefit of the purchaser, and the trust attaches to the land so as to bind the heir of the vendor. 1 Story's Eq. Juris., § 790. Of course the equity here stated is the stronger when the purchase-money is actually in the hands of the vendor. Nor is the principle inflexible that the court will not specifically enforce the contract where the price is not fixed or is left to be fixed by arbitration. In Cheslyn v. Dalby, 2 Y. & C. Exch. Cas. in Eq. 170, Cheslyn being indebted to Dalby in a large unliquidated sum, gave a deed of trust to Dalby for money borrowed at the time, with a stipulation that it should also stand as security for the unliquidated debt of Dalby to be afterward ascertained by arbitration. Cheslyn having paid the principal sum secured by the deed of trust, brought suit for a reconveyance, and Dalby filed a cross-bill to have his debt paid out of the property before this was done. The objection was raised that this was in the nature of specific performance, and the amount being uncertain, and no award having been made, it could not be done. But the objection was overruled. Baron Alderson says: "1. It is admitted there is some balance due to Thomas Dalby, and it is agreed that the estate is to be subject to a lien for that balance. But secondly, there is also an agreement as to a specific mode of ascertaining that balance in case of dispute. Now, the latter has failed by events over which the parties have no control. But it seems to me, notwithstanding this, the former part remains entire, and if Mr. Cheslyn has admitted that there is a balance due, and has by a deed executed under such circumstances as that it ought to be enforced, agreed that his estate should be subject to a lien for that balance, why am I to decree a reconveyance of the estate without compelling him to fulfill that part of the agreement." It was accordingly referred to a master to state an account in which this unascertained balance of Mr. Dalby's debt should be included. In Dinham v. Bradford, L. R., 5 Ch. App. 519, where one partner was in a certain event to take the partnership assets

at a valuation to be ascertained precisely as in the case before us, Lord Hatherley said: "Here is a man who has had the whole benefit of the partnership in respect to which this agreement was made, and now refuses to have the rest of the agreement performed on account of the difficulty which has arisen. * * ** If the valuation cannot be made modo et forma the court will substitute itself for the arbitrators." Decree of Dist. of Columbia Sup. Ct. reversed. Gunton et al., appellants, v. Carroll et al. Opinion by Miller, J.

EVIDENCE- -SWORN COPY OF PAPER OUTSIDE OF JURISDICTION.- When an original paper was without the jurisdiction of the court and the person in whose possession it was refused to surrender it, he having been examined on commission, a sworn copy was annexed to his deposition; held, under the rule that when the best evidence is unattainable secondary evidence is recoverable, the copy was competent evidence. Binney v. Runell, 109 Mass. 55; Brown v. Wood, 19 Mo. 475; Burton v. Driggs, 20 Wall. 125. Fisher v. Green. Opinion by Craig, J.

TROVER -LIES

FOR GRAIN INTERMINGLED WITH

OTHER GRAIN WHEN CONVERTED.-Appellee held warehouse receipts for 6,000 bushels of barley stored in the warehouse of R., which grain was intermingled with other barley, the whole amount aggregating 18,000 to 20,000 bushels. R. being indebted to a bank, had executed to it trust deeds of the warehouse under which it took possession of that and the grain therein, and refused to deliver the amount for which appellee held

UNITED STATES-NOT LIABLE FOR MONEYS DEPOSITED IN PROCEEDINGS FOR CONFISCATION.-The United States seized certain cotton, belonging to appellants, under the Confiscation Act. The proceeds of sale thereof were paid to the clerk under an order of the court pending condemnation proceedings, and were by him deposited in the S. bank, a designated depositary of public moneys, to his own credit as clerk. Judgment in the proceedings mentioned was rendered in favor of appellants. In the meantime the S. bank had become insolvent and except a small dividend, depos-receipts, although there was enough grain to meet all itors were not paid. Held, that the deposit made by the clerk was not equivalent to a payment into the treasury so as to make the United States liable to the appellants for the loss occasioned by the bank's insolvency. The designated depositaries are intended as places for the deposit of the public moneys of the United States; that is to say, moneys belonging to the United States. No officer of the United States can charge the government with liability for moneys in his hands not public moneys by depositing them to his own credit in a bank designated as a depositary. In this case the money deposited belonged for the time being to the court, and was held as a trust-fund pending the litigation. The United States claimed it, but their claim was contested. So long as this contest remained undecided the officers of the treasury could not control the fund. Although deposited with a bank that was a designated depositary it was not paid into the treasury. No one could withdraw it except the court or the clerk, and it was held for the benefit of whomsoever in the end it should be found to belong to. Judgment of Court of Claims affirmed. Branch et al., appellants, v. United States. Opinion by Waite, C. J.

ILLINOIS SUPREME COURT ABSTRACT.
MARCH AND MAY, 1880.

CONSTITUTIONAL LAW-VALIDATING INVALID CONTRACTS.- Previous to 1875 corporations generally had not the power to loan money in Illinois. By an act of the Legislature of that year corporations of other States authorized by their charter to loan money were allowed to loan money in Illinois, and where such a corporation had previously invested and loaned money it was given power to recover the same. Held, that the statute would validate a contract of loaning previously made, and a mortgage security taken thereupon when no rights of third parties intervened, and that it was not in conflict with the Federal Constitution. Under such circumstances the mortgagor would have no such equities as would give him a vested right as against the equities of the mortgage company. A party cannot have a vested right contrary to equity and justice. When such statutes go no further than to bind a party by a contract which he has attempted to enter into, but which was invalid by reason of some personal inability on his part to make it, or through neglect of some legal formality, or in consequence of some ingredient in the contract forbidden by law, the question they suggest is one of policy and not one of constitutional power. United States Mortgage Co. v. Gross. Opinion by Baker, J.; Walker, J., dissented. [Decided March 6, 1880.]

outstanding receipts. Held, that appellee could maintain trover against the bank for conversion of the 6,000 bushels of grain. If two persons were the joint owners of a specific chattel, and one were to sell it and convert the proceeds to his own use, will it be contended that the other joint owner could not sue in trover, and recover damages for the loss of his half? Trover being for the recovery of damages sustained by the plaintiff for the conversion of his property, it cannot matter whether he holds the property thus converted jointly with another, or in severalty. His right of property in either case is the same, and the damage he sustains is not different; and reason and justice require that the means of obtaining his rights should be the same in either case, nor is there any technical rule which prohibits it. In Chitty on Pleading, 167, it is said the action lies against any person who had in his possession, by any means whatever, the personal property of another, and sold it, or used it without the consent of the owner, or refused to deliver it when demanded. And it has been held that a person owning property mingled with that of another may, on its conversion, maintain the action. In Jackson v. Anderson, 4 Taunt. 24; Whitehouse v. Frost, 12 East, 614; Benjamin v. Stremple, 13 Ill. 466, and Boyle v. Levings, 28 id, 314, it was held that one tenant in common of a chattel may maintain trover against the other tenant in common where he has converted the property to his own use. This right was held to be given under the statute, but it only enlarges the common-law right. German National Bank v. Meadowcroft. Opinion by Walker, C. J.

WILL-CONDITION PRECEDENT TO DEVISE MUST BE STRICTLY PERFORMED - EQUITY.- - Where the vesting of title in an estate devised is subject to a precedent condition the condition must be strictly performed and equity will not vest it contrary to the law. Where there is a substantial deviation from the intent of the testator, as expressed in the will, the title will not vest. Kent, in vol. 4, § 125, in discussing this subject, says: "Precedent conditious must be literally performed, and even a court of chancery will never vest an estate when, by reason of a condition precedent, it will not vest in law. It cannot relieve from the consequences of a condition precedent uuperformed." In Vanhorne v. Dorrance, 2 Dall. 317, it is said: "Where an act is previous to an estate, and that act consists of several particulars, every particular must be performed before the estate can vest or take effect." See, also, 1 Jarman on Wills (2d ed.), 672, and notes; Reynish v. Martin, 3 Atk. 330. In the last case it is said: "But in our law, where the condition is precedent, the legatee takes nothing till the condition is performed, and consequently, has no right to come

and demand the legacy; but it is otherwise where the condition is subsequent." Nevins v. Gourley. Opinion by Craig, J.

IOWA SUPREME COURT ABSTRACT.

APRIL 27, 1880.

CONTRACT -VOID BY PUBLIC POLICY-RELEASE WITHOUT CONSIDERATION TO INFLUENCE VOTERS

ESTOPPEL. In an action against a county for services as deputy county treasurer, defendant set up that such deputy had executed and filed a release for such services, wherein it was set forth that he had been fully paid. Plaintiff replied that such release was filed previous to the holding of an election for county treasurer without consideration in order to induce electors to vote for the then incumbent of the office who was a candidate for re-election. Held, that the release could not be avoided, but constituted a valid defense. The court remark: The release imports a consideration, and operates as a discharge of the defendant, unless it can be shown that the release was given without consideration. The plaintiff, in order to show such want of consideration, alleges, and seeks to prove, in effect, that the release was executed for the purpose of bribing voters, and securing an election to a public office. It is well settled that the law will leave all who share in the guilt of an illegal or immoral transaction where it finds them, and will not lend its aid to enforce the contract while executory, nor interfere to rescind the contract and recover the consideration when executed. In Inhabitants of Wooster v. Eaton, 11 Mass. 378, the following language is employed: "It appears to be the settled law in England, and we are satisfied that it is also the law here, that where two parties agree in violating the laws of the land the court will not entertain the claim of either party against the other for the fruits of such an unlawful bargain. If one holds the obligation or promise of the other to pay him money, or do any other valuable act on account of such illegal transaction, the party defendant may expose the nature of the transaction to the court, and the law will say, 'Our forms and rules are established to protect the innocent and vindicate the injured, not to aid offenders in the execution of their unjust projects,' and if the party who has foolishly paid his money repents his folly and brings his action to recover it back, the same law will say to him, 'You have paid the price of your wickedness, and you must not have the aid of the law to rid you of an inconvenience which is suitable punishment for your offense.'" To the same effect is White v. Hunter, 23 N. H. 128. This doctrine, which is applicable to cases where the parties are pari delicto, must, a fortiori, apply to a case like the present, in which it does not appear that the defendant was a partaker in the unlawful purposes. Harvey v. Tama County. Opinion by Day, J.

REMOVAL OF CAUSE MISTRIAL NOT TRIAL TO PREVENT REMOVAL AMOUNT.—(1) A case was tried in a State Circuit Court and a verdict and judgment had for plaintiff. Upon appeal this judgment was reversed and a new trial ordered. Held, that before the new trial a petition for removal to the Federal court under U.S. R. S., § 639. The statute declares that the petition and affidavit for removal shall be filed at any time before the trial or final hearing. The words "final hearing" refer to actions in chancery. Vannevar v. Bryant, 21 Wall. 41. The petition must be filed at any time before "the trial;" not before a trial or any trial. "The trial" of a cause cannot mean a mistrial, which counts for nothing. The words refer to that trial which shall determine the issue of fact in the case, which is the object of the trial. A mistrial, therefore, was not in the contemplation of the lawmakers. Yulee v. Vase, 99 U. S. 539; Insurance Co.

v. Dunn, 19 Wall. 214. (2) Plaintiff, in his petition, asked judgment for $483, with interest at ten per cent, from a specified date, which principal and interest would amount to more than $500. Held, sufficient in amount to authorize a removal. Brayley v. Hedges. Opinion by Beck, J.

SPECIFIC PERFORMANCE - MORTGAGE, AGREEMENT TO PURCHASE SUBJECT TO, NOT AGREEMENT TO ASSUME.-Where a vendee contracted to purchase real estate "subject to" a specified mortgage, held, that he was not bound to accept a deed containing a provision wherein it was stated that he was "to pay as a part of the purchase-price of said premises" the specified mortgage, and an action would not lie against him for damages on a refusal to accept such deed. Held, also, that parol evidence was not admissible to show that he agreed to assume such mortgage. There are authorities which hold that if the amount of the incumbrance is deducted from the purchase-price, the vendee is bound to indemnify his grantor against the incumbrance, whether he expressly promised to do so or not, for a promise will be implied. Thompson v. Thompson, 4 Ohio St. 333; McMahan v. Stewart, 23 Ind. 590; Ferris v. Crawford, 2 Denio, 595. The only point decided in Townsend v. Ward, 27 Conn. 610, was that the conveyance tendered was not objected to in time, and therefore the vendee was holden. It was held in Burke v. Gummey, 49 Penn. St.518, that "a vendee of property taken subject to a mortgage makes the debt his own; and if, on a sale upon the mortgage, there is a deficiency which the vendor is obliged to pay on his bond he may recover in an action against the vendee." As we understand, this case only holds that the property constitutes the primary fund for the payment of the mortgage. This, if conceded to be sound, does not meet the necessities of the case at bar, because the mortgaged property has not been exhausted, and the plaintiffs seek to make the defendant primarily liable. It has been held by this court that the "sale and conveyance of land with covenants of warranty, subject, however, to a prior mortgage, does not, of itself and without a further showing, amount in law to a promise to pay off such incumbrance and discharge the mortgage debt." Johnson v. Monell, 13 Iowa, 300; Aufricht v. Northup, 20 id. 61; Hull & Co. v. Alexander, 26 id. 569. These cases are supported by the following authorities: Binsse v. Page, 1 Keyes (N. Y.), 87; Johnson v. Zink, 51 N. Y. 333; Strong v. Converse, 8 Allen, 557; Trotter v. Hughes, 12 N. Y. 74; Comstock v. Hitt, 37 Ill. 542; Fowler v. Fay, 62 id. 375. In Belmont v. Coman, 22 N. Y. 433, the conveyance contained covenants of warranty, but the incumbrance was excepted therefrom, and it had been estimated as a part of the purchase-price, yet it was held the grantee was not personally liable for the amount unpaid after the mortgaged premises had been exhausted. Lewis v. Day. Opinion by Seevers, J.

TEXAS SUPREME COURT AND COMMISSION OF APPEALS ABSTRACT.

CHATTEL MORTGAGE -ON MERCHANDISE WITH PRIVILEGE TO SELL.- In a deed of trust of a stock of merchandise, given to secure the payment of promissory notes, the grantors were authorized to retain possession of the stock of merchandise covered by it, and to continue selling in their usual course of business until default in the payment of the notes for security of which it was given. Held, that this alone did not constitute the deed void as to creditors. The court remarked that while there is no doubt great conflict in the decisions upon the point, we are not prepared to say that such a stipulation in a deed of trust without reference to the facts is legal fraud. In our opinion the weight of authority is against it. To hold that

authority to sell in his usual course of business invalidates the deed would virtually deny to a trader the right to give a mortgage upon his stock for ever so short a time, and however inconsiderable the debt might be in comparison with the mortgaged property, or however clearly the facts might demonstrate that there was no intent or purpose to defraud. Fletcher v. Morey, 2 Story, 555; Briggs v. Parkman, 2 Metc. 258; Jones v. Huggeford, 3 id. 515; Hughes v. Corey, 20 Iowa, 399. Scott v. Alfred. Opinion by Moore, C. J. (Supreme, March 12, 1880.)

CONTRACT-SALE OF MERCHANDISE FOR FUTURE DELIVERY- WAGERING CONTRACT. - In order to invalidate a contract for the sale and future delivery of merchandise on the ground that it is a gambling contract, the intent that it should be a mere betting on the market, without any expectation of actual performance, must be mutual and constitute an integral part of the contract. The secret intention of one of the parties not to fulfill his contract, uncommunicated to the other, is not enough to make the transaction illegal, nor that it was contemplated by him thereby to adjust the difference resulting from the fluctuations in the market price in case of a rise or fall, by making good, in money, by way of compensation, a guaranty to save the other party harmless against loss, or in like manner to make good the premium on profit to accrue to the other in case of advance in prices. Clarke v. Foss, 7 Biss. 540; Lehman v. Strassberger, 2 Wood, 562; Gilbert v. Gangar, U. S. Circ., 7 Cent. L. J. 41; Wolcott v. Heath, 78 Ill. 433; Logan v. Musick, 81 id. 415; Hibblewhite v. McMorine, 5 M. & W. 462; Porter v. Viets, 1 Biss. 177. Marx v. Ellsworth. Opinion by Walker, P. J. (Com. Appeals, March 19, 1880.)

NUISANCE

-WHEN PRIVATE ACTION LIES FOR OB

STRUCTING HIGHWAY. — Where defendant had obstructed a public street which passed along side plaintiff's land, by erecting a fence across the same whereby access to such land was hindered, thereby depreciating the value of the same, held, that such depreciation constituted a particular injury to plaintiff entitling him to redress. Frink v. Lawrence, 20 Conn. 118; Francis v. Schoelkepp, 53 N.Y. 152; Stetson v. Faxon, 19 Pick. 147; Blanc v. Klumpke, 29 Cal. 156; Oswald v. Grenet, 22 Tex. 94; Wood on Nuis., oh. 18. (Supreme Shepherd v. Barnett. Opinion by Gould, J. Ct. Feb. 24, 1880.)

RECENT ENGLISH DECISIONS.

BILLS OF LADING SETS OF THREE-RIGHTS OF INDORSEE-ENTRY UNDER SECOND BILL-LIABILITY OF WAREHOUSEMEN. -The consignees and owners of a cargo to arrive in London indorsed and delivered the first of three bills of lading to the plaintiffs as a collateral security for money advanced. These bills of lading had been signed by the master of the ship in the usual set, marked respectively "First," "Second" and "Third," and they represented the goods as deliverable to the said consignees or their assigns, that freight was made payable in London, and that the master had affirmed to three bills of lading, "the one of which bills being accomplished the rest to stand void." When the ship arrived the consignees made entry of this cargo, and it was placed in defendants' warehouses. The master on the same day lodged with the defendants a copy of the manifest of the cargo, with an authority to defendants to deliver the goods to the holders of the bills of lading, and on the following day notice to detain the cargo until the freight should be paid. Upon receipt from the consignees of the second of the bills of lading, the defendants entered the consignees in their books as enterers, importers and proprietors of the goods, and after removal of the stop for freight delivered the goods to persons

other than the plaintiffs, on delivery orders signed by the consignees, the plaintiffs having no knowledge of any dealings with the cargo. Held (by Field, J.), that upon resorting to their security, the plaintiffs were entitled to recover from the defendants the value of the goods placed with them under the bills of lading. Meyerstein v. Barber, 16 L. T. Rep. 569; Fearon v. Bowers, 1 Sm. L. Cas. 705; Lickbarrow v. Mason, id. 601; The Tigress, 32 L. J. 97; Wilson v. Anderton, 1 B. & Ad. 450; Batut v. Hartley, L. R., 7 Q. B. 594. Q. B. Div., Jan. 23, 1880. Glyn Mills & Co. v. East and West India Dock Co. Opinion by Field, J., 42 L. T. Rep. (N. S.) 90. CORPORATION -LIABILITY OF COMPANY ISSUING A CERTIFICATE OF STOCK UNDER A FORGED TRANSFERESTOPPEL. — The registration of a transfer of stock and the issue to the transferee of a certificate does not give the transferee as against the company a right by estoppel to the stock. B. & Co. purchased upon the stock exchange 5,000l. stock in the defendant company. A transfer of the stock purporting to be executed by C., the owner of the stock, was lodged with the company by S. & Co., the nominees of B. & Co. The company, after making the usual inquiry, registered S. & Co. as holders. Afterward B. & Co., having agreed to deposit the stock with plaintiff to secure advances, caused S. & Co. to execute a transfer to plaintiffs, who were accordingly registered, and received a certificate from the company. Plaintiffs subsequently being repaid their advances, had no beneficial interest in the stock, but held as trustees for B. & Co. The company having discovered that the alleged transfer from C. to S. & Co. was a forgery, replaced C.'s name upon the register, and refused to pay dividends to plaintiffs, or to acknowledge their title to the stock. In an action by plaintiffs against the company, held (reversing the judgment of Lindley, J.), that inasmuch as B. & Co. were the real plaintiffs, the company were not estopped from denying the validity of the transfer from C. The company are not bound on behalf of the transferee to make inquiry of the transferor before registering the transfer. Ct. App., Dec. 5, 1879. Sim v. Anglo-American Telegraph Co. Opinions by Bramwell, Brett and Cotton, LL. J., 42 L. T. Rep. (N. S.) 37.

PARTNERSHIP- EXPULSION OF MEMBER- COMMONLAW PROCEDURE ACT, 1854, s. 11- ARBITRATION CLAUSE-ORDER OF REFERENCE. A deed of partnership contained a clause that "if at any time during the said partnership the business thereof shall not be conducted or managed, or the results thereof shall not be to the satisfaction of the said W. A. R. (one of the partners), it shall be lawful for the said W. A. R to give a notice in writing to the other partners or partner of his desire that the said partnership shall determine, and in such case the partnership shall cease and determine immediately on the expiration of three calendar months from the giving such notice." Held, that the power conferred by the clause was one which W. A. R. could exercise capriciously, and at his own will and pleasure. Where a partnership deed contains an arbitration clause, and disputes occur between the partners, the mere fact that one partner makes a charge of actual fraud against his copartner is not sufficient to prevent the copartner from insisting on a reference to arbitration, and the court, having regard to the discretion given by the Common-Law Procedure Act, 1854, section 11, ought in the exercise of that discretion to allow the matters which have been expressly agreed to be referred to arbitration to be so referred, but secus, if the partner charged with fraud desires a public examination into the truth of the stigma endeavored to be cast upon him. Dicta of Wickens, V. C., in Willisford v. Watson, 28 L. T. Rep. (N. S.) 428; L. Rep., 14 Eq. 572, dissented from; Wood v. Woad, 30 L. T. Rep. (N. S.) 815; L. Rep., 9 Ex. 190, observed upon as containing the principles laid down in Fisher

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