« AnteriorContinuar »
tion, from the printer's name. It was probably pub- declared that those laws not ratified or confirmed by lished for the use of the authorities in England. the proprietary were void, but this was a mere repe
It not unfrequently happens that the courts and the tition of the Duke's instructions. (3 Col. Doc. 332.) legal profession have need to consult the statutory law The laws of the proprietary which were approved by of the Province of New York, and it is a subject of re the lord proprietor were not impugned by the resogret that tho various editions (though much more lution; and, therefore, clearly those laws not rebeautifully printed than the State session laws) are of jected by him remained operative as before the res80 incomplete and untrustworthy a character. Mr. | olution. Indeed, Mr. Smith himself, later on in George H. Moore, the accomplished superintendent of his history, states that in 1741, when Mr. Florsmanden the Lenox Library, who has given the subject the most was directed by the Assembly to compile the laws, it valuable attention, estimates that of nearly two thou was discovered that several acts passed prior to 1691 sand statutes enacted between 1991 and 1775, not one were still in force, and an act was then proposed to rethird have been printed in the various collected and peal all such, but it was not passed. (2 Smith's Hist’y revised editions --- all of which are long since out of N. Y., p. 66.) Mr. Butler has stated the reasons which, print.
in his opinion, probably prompted the resolution of A republication of the provincial laws of New York the lower house. (Butler's Const. Hist'y, 41.) Judge is unquestionably desirable, not only for the use of the Hoffman thought one of the acts of the Assembly of legal profession but for the benefit of the public author 1683, founding the Court of Chancery, to be in force ities and the historical student. If such an undertaking as late as the year 1834. (1 Hoffman's Ch. Pr. 15-18.) be too long delayed, it may be wholly prevented by the In so far as this resolution under consideration condestruction of either the private repositories or the cerned the ordinances of the governors and council charter rooms of the public archives, containing the prior to 1691, it was also declaratory of the rule of law, necessary but scattered materials. Yet those who are that such ordinances must not be contrary to the Confamiliar with the Kent and Radcliffe, and the Van stitution of England, by which was meant the comNess and Woodworth revisions of the State laws, must mon law; it could not affect those ordinances which appreciate the important relations which the pro were valid at common law. (Op. Atty.-Gen. Kemp. vincial laws bear to our present statute law, and Kemp papers MS. N.Y. Hist. So, Col.) The reason why to the actual and contemplated statutory codification. the provincial revisors were directed to begin with the Such provincial laws are the very foundation stone of acts of the Assembly first held after the Revolution of our juridical superstructure. An intelligently an 1688, undoubtedly was that most of the laws of the pronotated revision of these laws would of itself complete prietary were not in print, so that they were little the legal history of the State. Massachusetts has be known even in the eighteenth century. (24 Wend. 625.) stowed on her early statutes much more attention But the omission of the revisors does not affect the than New York; yet the early laws of New York are | validity of the earlier laws. quite as interesting and important.
One of the first acts of the Assembly of 1691 was The question, how far the laws of the Province that, “declaring what are the rights and privileges of which were enacted before the year 1691, remained in their majesties subjects inbabiting within their Provforce after that year, has been the subject of judicial ince of New York." The purpose of this act was inquiry at a comparatively recent date. Doubts on similar to that of the “Charter of Libertys," disalthe subject were occasioned by the statements of the lowed by King James II., (Vol. 21, Alb. L. J., p. 268.) early historian, Smith, “that those acts which were - a limitation of the prerogative and an additional made in 1683 and after the Duke's accession to the guaranty of political rights. The act of 1691 suffered throne, when the peoplo were admitted to a participa the fate of its prototype, being repealed in the year tion of the legislative power, are for the most part 1697, and thus the inhabitants were remitted to their rotten, defaced or lost; and that all laws antecedent original status as English subjects, resident in a royal to the Assembly of 1691, were disregarded both by the Province of the Crown. Legislature and the court." (Smith's Hist'y N. Y., The commission to Colonel Sloughter, as has been Loud. ed., 1757, p. 73; 2 Graham's Hist'y of U. S., p. before stated, formally granted the rights of the in255.)
habitants of New York to a representative Assembly The lower house of the provincial Assembly, on the – a right of which they could not afterward be law24th of April, 1691, resolved, that all the laws consented fully deprived. (Chitty's Prerog. 33.) This particular to by the General Assembly under James, Duke of | commission is important, as it was a distinct recogniYork, and the liberties and privileges therein con tion by the new sovereigns of the bicameral legistained, granted to the people and declared to be their | lative system, or the principle of two legislative rights, uot being observed and not ratified and approved by his Royal Highness, are null and void and developed in England, and like the common law acof none effect; and also, the several ordinances made companying the Anglican race in all its migrations by the late governor and council, being contrary to the was permanently established in New York to continue Constitutions of England and the practice of the gov with but minor modifications until the present time. ernment of their majesties other plantations in Our juridical plan is not the only debt that we owe to America, are null, void and of none effect or force the progress of the common law, for the very theory within this Province. (1 Assembly Jour. 1, 8, 9.) This ! and practice of a bicameral Legislature, is itself a comresolution never ripened into a law. It is said to have mon-law development. been simply declaratory of tho existing rule on tho The commission to Governor Sloughter also empow. subject, and, in reality, not to have had the effect ofered him, with the advice and consent of the council, abrogating any of the valid enactments of a date prior to erect and establish courts of judicature for the trial to 1691. (Van IV inkle v. Constantine, 10 N. Y. 428; / of all causes, legal and equitable, civil and criminal. Ilumbert v. Trinity Church, 24 Wend. 625. See, also, This clause relates to a species of prerogativo legislaJackson v. Gilchrist, 15 Johns. 112.) A close examina tion which has by tradition been vested in the Crown, tion of the resolution in question shows that it only independent of the Legislature. The right of the
Crown to erect courts of law without the concurrent
action of Parliament seems to have been admitted in * Attention was called to this edition by Mr. Winters, the assistant librarian of the New York Law Institute, who has
England. Whether such power extended to courts of mnade the session laws of the different States a special
equity has been questioned and denied, but in the study, to the great benefit of his library. The N. Y. Hist. colonies this prerogative clearly extended to the estabSociety possess a copy of the Baskett edition.
lishment of courts both of law and equity. (Chalmers' Col. Op., p. 194.) In the colonies, however, the Crown quit-rents — always greatly in arrears. (Lond. Doc. rarely claimed the exclusive right; and at times the xxiv, 880.) colonial and provincial Legislatures seem to have been The proceedings of the Court of Chancery in New allowed a share in the establishment of the judicato York were, doubtless, somewhat intermittent; Blake ries, while at others, when the Crown asserted its pre (Int'd to Ch. Pr.), and Johnson, (Int'd to Johns. Ch. rogative, they were excluded.
Rep.) have thought that this tribunal transacted but The permanent judicial establishment of the Prov- | Jittle business prior to the Revolution of 1775-6, but it ince of New York owed its origin to the Assembly of | is more than probable that the opinion of these gen1091. A Supreme Court of judicature, possessing the tlemen was founded on the statement of the historian jurisdiction of the English Courts of King's Bench, Smith, “that the wheels of chancery have ever since Common Pleas and Exchequer, was then created. (1727) rusted upon their axis” –“the practice being (Bradford, 1694 ed., N. Y. Laws, p. 2.) This tribunal contemned by all gentlemen of eminence in their prowas, in the main, a court of law, possessing jurisdic fession.” (1 Smith's N. Y. 280.) It must be rememtion of causes involving upward of twenty pounds, bered, in this connection, that Mr. Smith, though livand also an extended supervisory and appellate juris-ing at the time of which he wrote, was far from an diction over the inferior judicatories. In the year impartial witness. His father had been engaged profes1733 it was asserted, that it had likewise the equity sionally in the hostile attack on the court of equity in jurisdiction of the court of equity in the Exchequer Governor Cosby's administration, and had thus become Chamber; and this pretension was decided in the af- a leader of the popular party. The historian Smith firmative. The Judiciary Act of 1091 was continued followed the political bias of his father, though at the by an act of Assembly, passed November 9th or 11th, beginning of the Revolution he abandoned the popu1692 (Bradford's ed., N. Y. Laws, 1694, p. 61); and the lar party and became a judge under the Crown, in latter was again renewed in October, 1695, for two | Canada. The late Judge Hoffman, who, years afteryears. In 1697 this act was finally extended for one ward, gave the subject the closest attention, seems to year; but, on its expiration, differences having arisen have had a very different estimate of the volume of between the Assembly and the governor, it was allowed chancery business in the Province, as well as of comto expire by limitation. Finally Lord Bellomont, as | parative importance. (Hoffman's Ch. Pr. pp. 11-14.) the royal governor of the Province, in 1099, resorted to Doubtless the Albany records of the Provincial Court the prerogative and continued the courts by an ordi- of Chancery confirm the latter's view. nance, in which the Assembly had no part. (Appendix The early establishment of a Court of Chancery in No. v., 2 R. L. 1813.) This ordinance was confirmed New York was, in several aspects, important; it conby Lord Corubury in 1704. (Appendix No. vi, 2 R. L. | tributed to its jurisprudence the symmetry which that 1813.) On this footing, the Supreme Court continued of many of the other colonies lacked, and it finally led down to the establishment of the State government, to the constitutional recognition of the office of chauwhen it was further continued as part of the existing cellor, possessing almost the powers of the lord chauorder of things.
cellor in England. (Camp. & Cambreling's Ch. Dig., The Court of Chancery of the Province, originally | p. xi, Pref.) It is now difficult to estimate the influerected by the act of 1683, was remodelled by the “Actence exercised for over half a century by the chancelfor establishing courts of judicature," passed in 1691. ) lors of the State of New York, not only within their This act, continued from time to time, as described in | own proper sphere, but as well in the formation of the preceding paragraph, finally expired. On the 28th equity jurisprudence in its American phase. Without of August, 1701, an ordinance was issued reestablish - | tho chancery reports of this State, it is needless to say ing the chancery and authorizing the governor and that the New York contributions to practical adminiscouncil, or any three of them, to hold the court. Intrative jurisprudence would be greatly diminished in June, 1702, its operations were suspended until a fee value. True it is, that Justico Story has said that equity bill should be settled, and it was not again revived was scarcely felt in New York until about the time of until the 7th day of November, 1704, when it was Caine's and Johnson's reports ($ 56, Story's Eq. Jur.) directed to proceed. (2 R. L. 1813, Appendix vii.) But it is not strange that the influence of equity jurisAt various times the lower house of Assembly pro prudence was greatly augmented by the efforts of the tested against the establishment of a court of equity reporters. That their influence was at once so extensivo by the governor without their concurrence; but not. depended, however, on the highly developed condition withstanding this fact the Court of Chancery, until of tho equity administration at the time the reports bethe year 1711, continued to be held by tho governor gan in New York. Taking into consideration the fact, and council, by virtue of the ordinanco mentioned. that equity jurisprudence was greatly neglected in many Subsequent to the year 1711, the governor alono sat as of the Anglo-American colonies, and that until Lord chancellor. (Council Min.)
IIard wick's time the administration of equity, even in The very early establishment of a Chancery Court in England, presented many uncertainties, it is a remarkaNew York was one of several causes contributing to ble fact that tho ameliorating tendency of equity was the relative preeminence of its particular jurispru | recognized iu New York in the very beginning of its dence. In many of the American colonies equity | political life. It must be considered a very fortunate jurisprudence had, prior to the War of Independence, circumstance that it was so recognized, for when the no distinct existence in any large and appropriate equity powers of the chancery were distributed sense. In the Province of New York there was, how under the Constitution of 1846, throughout the courts ever, a tendency to more closely conform to English of record of New York, a well-understood jurisdiction precedents. (2 Smith's Hist'y N. Y. 320.) Matters of was thus engrafted on the law courts and the process equity, as distinct from cases cognizable at law, were of assimilation was rendered more facile and certain. recognized by the “Duke's Lawes" of 1665, while a One of the first duties of the English authorities, Court of Chancery was eo nomine established by the after the conquest, was to make suitable provision for act of 1683. It must bo conceded, that there was a the probate of wills and tho administration of estates. strong popular prejudice against the discretionary (The Duke's Lawes, Tit. Administration.) The clerks power of the chancellor, which was thought to be of the courts of session which had cognizance of probounded by no very defined limit, and to conceal the bate in the Euglish parts of tho Province were directed undefined prerogative with which colonial principles to certify the names of the decedents and their execuwere ever at war. But it has been said that tho true tors or administrators, with their security, to the regrounds of the hostility of the people of New York to corder's office at New York city. This led to the the equity courts was their jurisdiction of the king's I establishment of a prerogative court (Bradford's ed. N. Y. Laws, ed. 1694, p. 72), from which letters testa-1 bill was found, and the indictment and record show mentary and of administration issued under its pecu- upon the face of the proceedings that the offense liar seal. The delegates appointed to take charge of charged was for embezzling, abstracting and misapthe estates of intestates, in the distant counties, plying the funds of the First National Bank of Ashpursuant to the act of 1692 finally took the name of land, created under the National Banking Act. surrogates, which then signified deputies of the pre Relator was arrested and lodged in the county prison, rogative court. This name is now retained in our then took out this writ of habeas corpus, and in obediprobate courts, although the surrogate has become ence to its command, Ketner, the warden of the prison, chief judge of the probate court. In the year 1754 a produced the body, and made return that he held the judge of probate was appointed; he shared with the prisoner by virtue of above-named proceedings. prerogative office the duties of ordinary and surrogate By virtue of article V, section 3, of the Constitution general. There was very little that was either original of 1874, the Supreme Court of Pennsylvania, in cases or peculiar in the courts appointed for the cognizance of habeas corpus, has original jurisdiction. of wills and administration.
William A. Marr, James Ryon, William B. Mann The judicial organization of the Province may be
and John W. Ryon, for relators. The State court has regarded as having been established by the Judicature
no jurisdiction, embezzlement not being a commonAct of 1691 (Bradford's N. Y. Laws, ed. 1694), and the
law offense. 2 Russell on Crimes, 163; 4 Bl. Com. jurisdiction and tribunals established by it, have re
230; United States v. Clew, 4 Wash. C. C. Rep. 700. Conmained essentially the same to the present day. This
gress has power to give the Federal courts exclusive act defined the courts of justices of the peace, the
jurisdiction. Houston v. Moore, 5 Wheat. 1--24; 1 courts of sessions of the peace, the county courts of
Kent's Com. 398; Curtis' Com. 176; Claflin v. HouseCommon Pleas, the mayor's courts of cities, the Su
man, 3 Otto, 141. Where an act of Congress creating preme Court and tho Court of Chancery. It also regu
a corporation provides a punishment to be inflicted lated the Provincial Court of Appeals, which was al
upon any officer of the corporation who embezzles its most identical with the old Court of Errors, if not its
property, it is not competent for the State Legislature progenitor. From the provincial Court of Appeals,
to make the same act an offense against the laws of the appeals lay to the King in council.
State. Commonwealth v. Fuller, 8 Metc. (Mass.) 313; It may be proper, in a survey of the judicial organ
Commonwealth v. Felton, 101 Mass. 204; Commonwealth ization of the Province, to refer to the Court of Ad
v. Barry, 116 id. 1; State v. Tuller, 34 Com. 280. By miralty established for New York, although it pos
section 711 of the Judiciary Act of 1789 (U. S. R. 8. bessed but a limited jurisdiction within the Province.
134), the jurisdiction vested in the United States Under the Duke of York, special commissions, issued
courts is exclusive of the State courts. Section 5.209, for the determination of admiralty causes, but in
et seq., of the National Banking Act provides for pun1078 a regular court was established under the govern
ishing embezzlement by officers. or's commission. In the year 1699 the lords of trade recommended that the chief justice of the Supreme A. W. Schalck, district attorney, and IIughes & FarCourt of New York be empowered to act as judge in quhar, for respondent. Jurisdiction of State courts admiralty. Accordingly William Smith, then chief | has been sustained in Buckwalter v. United States, 11 justice, was made admiralty judge, and fulfilled the Serg. & R. 196; White v. Commonwealth, 4 Binn. 418; duties of that station from 1699 to 1702. Ultimately a Commonwealth v. Shaefer, 4 Dall. 27; United States v. vice-admiralty court was established by commissions
Ilutchinson, 4 Clark, 211; Jett v. Commonwealth of issuing from the High Court of Admiralty in England. Virginia, 7 Am. Law Reg. (N. S.) 265; Claflin v. IlouseAppeals from the Vice Admiralty Courts for some | man, 3 Otto, 130; Colemun v. State of Tennessee, 7 id. time lay to the Court of Admiralty in England, but 509, especially the dissenting opinion of Clifford, J., shortly before the American Revolution a superior not differing in this respect from the majority of the court of admiralty was established in North America, court. and thenceforth all appeals from the vice-admiralty
Paxson, J. It appears by the return to this writ were directed to be made to it.
that the relator is held to answer an indictment in the Jurisdictions have since been shifted and inter
court of quarter sessions of Schuylkill county, chargchanged; and yet, after all, but few novelties havo been | ing him, as cashier of the First National Bank of Ashengrafted on the ancient foundations.
land, with having embezzled the funds and property
of said bank. There are three counts in the indictJURISDICTION OF STATE COURTS AS TO ) ment, each varying the form of the charge, but not OFFENSES BY NATIONAL BANK
essentially changing its substance. OFFICERS.
It is almost needless to say that a habeas corpus is
not a writ of error. Ilence, if the court below had PENNSYLVANIA SUPREME COURT, JANUARY 19, 1880.
jurisdiction of the offense, we cannot correct its rulings in this proceeding, however erroneous they may
be. On the other hand, it is equally clear that if the COMMONWEALTII EX REL. TORREY V. KETNER.
relator is being prosecuted for a matter which is not A Pennsylvania Stato court has not jurisdiction to try an an indictable offense by the law of Pennsylvania, or indictment against the cashier of a National bank for
one over which the court below has no jurisdiction, it einbezzling the funds of tho bank, such embezzlement
would be our right, as well as our plain duty, to disnot being a common-law oflense or ono against tho stat
charge him. No authority is needed for so obvious a utes of Pennsylvania.
proposition. A PPLICATION by habeas corpus for the release of
Embezzlement by the cashier of a bank is not a comA William Torrey, the relator, who was held upon a mon-law offense. This indictment must rest upon charge of embezzling, abstracting and misapplying the some statute of this State or it ca
some statute of this State or it cannot be sustained. funds, moneys and assets of the First National Bank Ilas it such support? As preliminary to this question, of Ashland, in Schuylkill county; a bank duly incor- it is proper to say that section 5:209 of the United porated, organized and established under the laws of States statutes provides specifically for the punishment the United States, commonly known as the National of cashiers and other officers of National banks who Banking Act.
shall be guilty of embezzling the moneys, funds or The prosecution, which was commenced before a credits of such institutions. The relator was not injustice of the peace, was returned to the quarter ses- dicted under this section, and could not have been in sions of Schuylkill county, aud in that court a true 'a State court. Our own legislation upon this subject may be briefly stated. We have first the Crimes Act of ciously, willfully and fraudulently making false entries 1860 (P. L. 382), the 116th section of which prescribes in tho books, reports and statemeuts of the said bank. and punishes the offense of embezzlement by any person
James Ryon, for plaintiff in error. “being an officer, director, or member of any bauk, or other body corporate or public company. Then
A. W. Schulck, district attorney, Geo. R. Kaercher we have the act of May 1, 1861 (P. L. 515), entitled “A | and Lin Bartholomew, for defendant in error. supplement to an act to establish a system of free Paxson, J. The second assignment denies the jurisbanking in Pemsylvania, and to secure the public diction. Tho plaintiff in error was convicted upon an against loss from insolvent banks, approved 31st March, indictment charging him as receiving teller of the First 1860,” which also prescribes and punishes embezzle- | National Bank of Mahanoy City, with fraudulently ment by bank officers. Lastly, there is the act of 12th making false entries in the books, reports, and stateof June, 1878 (P. L. 196), which amends the aforesaid ments of said bank, with intent to injure and defraud 116th section of the act of 1860, by substituting a new the said bank, and we are asked to 'reverse the judgsection in its place, and imposing a different punish ment upon the ground that tho offense charged having ment. This leaves the acts of 1861 and 1878 as the only
been committed by an officer of a National bank, it is ones which could possibly support the indictment. It
not the subject of an indictment in a State court. was urged, however, and with much force, that the act
Commonwealth ex rel. Torrey v. Ketner, reported above, of 1861 was only intended to apply to banks organized
was relied upon to sustain this position. Torrey was under the free banking law, of which it forms a part; indicted as cashier of a National bank with embezzling and that as to the act of 1878, the offense charged in the funds of the bank, and was discharged upou habeas the indictment was committed prior to its passage. corpus, for the reason that the offense was not indictaThis fact was formally conceded upon the argument, ble at common law, aud our statutes defining and punand while we might not be able for such reason to
ishing the offense do not apply to National banks. grant relief upon habeas corpus, it furnishes a conclu Here the indictment charges an offense which was a sive reason why, upon a trial in the court below, the
crime at common law. In Commonwealth v. Beamish, Commonwealth could derive no aid from the act of 31 P. F. S. 339. it was decided that the fraudulent al1878.
teration of a book, known as a tax duplicate, was We are spared further comment upon these acts for
forgery at common law. It is plain, under this authorthe reason that they have no application to National ity, that the plaintiff in error could have been indicted banks. Neither of them refers to National banks in for forgery. Tho indictment here is laid under the terms, and we must presume that when the Legislature statute, and does not charge the offense of forgery in used the words “any bank," that it referred to banks | the technical manner required by the sti
the strict rules of created under and by virtue of the laws of Pennsylva
the common law, but, as in Commonwealth v. Beamish, nia. The National banks are the creatures of another is good under our Criminal Procedure Act. That the sovereignty. They were created and are now regulated act of Assembly does not call it forgery makes no difby the acts of Congress. When our acts of 1860 and
ference. It is the same offense. 1861 were passed there were no National banks, nor The first assignment alleges error in another case, in even a law to authorize their creation. When the act which the plaintiff in error was convicted and senof 1878 was passed, Congress had already defined and tenced. We cannot, upon this writ of error, reverse a punished the offense of embezzlement by the officers judgment in another case though against the same of such banks. There was therefore no reason why | party. Nor is it material, as the record shows the the State, even if it had the power, should legislate | plaintiff has served out the term of imprisonment imupon the subject. Such legislation could only produce posed by the court. uncertainty and confusion, as well as a conflict of
Judgment affirmed. jurisdiction. In addition, there would be the possible danger of subjecting an offender to double punish MORTGAGE OF SUBSEQUENTLY ACQUIRED ment, an enormity which no court would permit if it
PERSONAL PROPERTY. had the power to prevent it.
An act of Assembly, prescribing the manner in ENGLISH HIGH COURT OF JUSTICE, COMMON PLEAS which the business of all banks shall be conducted, or
DIVISION, MAY 14, 1880. limiting the number of directors thereof, could not by implication be extended to National banks, 1or the
LAZARUS V. ANDRADE, 43 L. T. Rep. (N. S.) 30. reason that the affairs of such banks are exclusively
The grantor of a bill of sale assigned to the grantee the under the control of Congress. Much less can we, by
whole of the stock-in-trade, chattels, goods, and effects
in certain specified premises, and also the stock-inmere in plication, extend penal statutes, like those of
trade, goods, chattels, and effects which might at any 1861 and 1878, to such institutions.
timo during the continuance of the security bo brought The offense for which the relator is held is not in
into the premises either in aďdition to or on substitudictable either at common law or under the statutes of tion for the stock-in-trade, goods, chattels, and effects Pennsylvania. We therefore order him to be dis therein at the time of the making of the bill of sale. charged.
Held, by Lopes, J. (in further consideration), that the
property in stock-in-trade brought upon tho premises PENNSYLVANIA SUPREME COURT, MAY 3, 1880.
subsequently to the making of the bill of sale passed
by it to the grantee. LUBERG, Plaintiff in Error, v. COMMONWEALTH OF
| THIS was an interpleader issue tried before Lopes, J.
T The plaintiff was the holder of a bill of sale given PENNSYLVANIA.
by one Phillips, whereby he assigned to the plaintiff A State court has jurisdiction to try an indictment against
“all and singular the stock-in-trade, chattēls, goods, the cashier of a National bank for fraudulently making
and effects now being in, upon, or about the messuage false entries in its books with the iutention to injure the bank, such acts being forgery at common law.
or dwelling-house, warehouse and premises, situate
and being No. 62 Wilson street, Finsbury, in the TRROR to the Schuylkill quarter sessions. Charles county of Middlesex, tho particulars whereof are set V E. Luberg, the plaintiff in error, was convicted forth in the schedule hereunder written. And also upon an indictment charging him as receiving teller of the stock-in-trade, goods, chattels, and effects which the First National Bank of Mahanoy City, a bank shall or may at any time or times during the continuduly incorporated, organized and established under ance of this security be brought into the aforesaid the laws of the United States, with unlawfully, mali- I messuage or dwelling-house, warehouse and premises,
or be appropriated to the use thereof, either in addi portion of the stockholders of the company disputed the tion to or in substitution for stock-in-trade, goods, validity of the sale and of the bonds, and appointed a chattels, and effects now being therein or any of committee to represent the stockholders. An arrangethem."
ment was made between the two committees whereby The schedule specified various quantities of ostrich the opposition to the foreclosure sale was withdrawn and other feathers and some furuiture.
and the stockholders of the company were awarded the The defendant, an executive creditor, seized the right to subscribe for the stock of a new company to be property on Phillips's premises, including stock which organized by the bondholders' committee called the W. had been brought there in substitution for that which compauy, upon the terms set forth in a circular menwas there at the date of the making of the bill of tioned. By that circular the stockholders named were sale.
to have the option for thirty days from its date upon
the payment of ten dollars per share in installments LOPES, J. This bill of sale purported to assign to
and the surrender of their old stock to join in the W. the plaintiff all the stock-in-trade, chattels, goods and
corporation. After thirty days the right to do this effects in the messunge, particulars whereof were set
was to cease; the railroad property was to pass at once forth in a schedule thereunder written. And also the
to the new corporation. This company was organized. stock-in-trade, goods, chattels, and effects which
Plaintiff in his complaint set up that the W. comshould or might at any time or times during the con
pany, the defendant, obtained the property of the T. timuance of the security be brought into the messuage,
& W. company; that plaintiff was an owner of shares warehouse and premises, or be appropriated to the use
in the latter company; that he had no kuowledge of thereof, either in addition to or in substitution for
the agreement between the committees until long stock-in-trade, chattels, and effects now being therein,
after the expiration of the thirty days named, and or any of them. The sheriff had seized stock-in-trade
that after he had notice and before the payment of the not being contained in the said schedule, nor in the
last assessment he tendered to the chairman of the premises when the bill of sale was executed, but other
purchasing committee of the bondholders the amount stock-in-trade not comprised in the schedule, which
of the assessment upon his shares, and offered to surhad been brought into the premises by the grantor
render them, and demanded stock in the W. corporasubsequently to the date of the bill of sale. Such last
tion, which demand was not complied with. Held, mentioned property had been brought into the prem
that no action for damage would lie by plaintiff against ises in addition to or in substitution for stock-in-trade
the W. corporation. If the foreclosure sale was inin the premises when the bill of sale was executed. It
valid plaintiff might by proper proceeding attack it, was contended for the defendant (the execution cred
but if he claimed rights under the arrangement itor) that the goods brought into the preniises subse
made for the benefit of the stockholders of the T. & quently to the execution of the bill of sale did not pass
W. company between the committees, he must show to the plaintiff, and that the title of the defendant in
that he had complied with the terms of the arrangerespect of them was preferable to the title of the
ment. Judgment affirmed. Thornton, appellant, v. plaintiff (the claimant). Holroyd y. Marshall, 7 L. T.
Wabash Railway Co. et al. Opinion by Rapallo, J. Rep. (N. S.) 172; and Leatham v. Amor, 38 L. T. Rep.
[Decided Sept. 21, 1880.] (N. S.) 785, were relied upon by the plaintiff, and
NEGOTIABLE INSTRUMENT - PAYMENT OF DEBT BY Belding v. Read (ubi sup.) by the defendant. The
CHECK--LOSS OF CHECK - CERTIFIED CHECK -- PAYprinciple deducible from these decisions is, that prop
MENT ON FORGED INDORSEMENT - RIGHTS AND LIAerty to be after acquired, if described so as to be capable
BILITIES OF PARTIES.- Where a party pays his own of being identified, may be, not only in equity but also
debt by a check to the order of his creditor or of a at law, the subject-matter of a valid assignment for
party nominated by his creditor, he can be called upon value. The contract must be one which a court of
to pay it again in case the creditor loses or is deequity would specifically enforce. Belding v. Read, 3 H.
frauded of the check and it is paid to the finder or & C. 955, was decided before the Judicature Acts, and
fraudulent holder on a forged indorsement. And the is distinguishable from the present case. . The ground
case is not varied by the circumstance that the check of that decision was that the description, "all other
was certified after delivery and before payment, it not the personal estate and effects whatsoever now being
being shown that such certification was procured by the or hereafter to be on the premises or elsewhere in the
creditor to whom the check was given or by the payee United Kingdom,” was so vague that it did not entitle
of the check. If the check had been lost and the the claimant to institute a suit for specific performance
finder had procured it to be certified and forged the of the contract. Neither the character of the property
indorsement, the certification would not be binding nor its whereabouts was indicated, and there was
upon the bank nor affect the rights of the parties after nothing to earmark it. In this case the property is to
it had been surrendered. It is only in case the true be brought into the premises, or to be appropriated to
owner of the check has received the certification that the use thereof, either in addition to or in substitution
recourse can be had upon it against the certifying for property then on the premises. I think the assign
bank notwithstanding the subsequent loss of the check ment sufficiently specific, the property in question
and the payment upon the forged indorsement. In this having become specific by being brought on to the
case where plaiutiff received a check to the order of premises in addition to or in substitution for property
H. from the defendants on the M. bank, and this mentioned in the schedule. The case of Leatham v.
check was certified by the M. bank and afterward paid Amor (ubi sup.) is a strong authority in favor of this
upon a forged indorsement, the amount of the check view. Judgment for the plaintif.
having been charged by defendant against plaintiff and by them settled, held, that defendant was liable to
plaintiffs for the amount of the check, it not appearing NEW YORK COURT OF APPEALS ABSTRACT. that the certification was obtained by plaintiffs or their
agent, or that the claim of defendants upon the M. CORPORATION-RAILROAD COMPANY — RIGHTS OF bank for the check had been barred by the statute of STOCKHOLDER--FORECLOSURE OF MORTGAGE - FORMA limitation. It is well settled that a bank paying upon TION OF NEW COMPANY. — An action was carried on a forged indorsement must bear the loss and camiot to foreclose a mortgage upon the railroad and fran- | charge to a depositor. Judgment affirmed. Thompson chises of the T. & W. railroad company, and the et al. v. Bank of British North America, appellants. mortgaged property sold thereunder to a committee Opinion by Rapallo, J. representing the holders of the mortgage funds. AI [Decided Sept. 21, 1880.]