« AnteriorContinuar »
mal-administration and civil war may have strained "there is great force in the argument that the people the superstructure, the foundations stand firm and of the State have succeeded to all the prerogatives of uimoved.
the British crown, so far as they are essential to the This is our Union of States (Staalen bund), of which efficient exercise of powers inherent in the nature of the only bond is the constitution, a permanent com civil government.” The general drift of authority in pact, adopted freely by all the States, as parties to it; New York, therefore, is in favor of the prerogative of whereby a Government was created into whose every the State. It is to be expected, however, that whenorgan, the forces of each State, drawn from its legis ever this question will reach the Court of Appeals, latures and its people, are infused, and whereby citi strong arguments will be presented on both sides. zen rights in each are secured in all, and the honor Those who would deny the right of the State have a and dignity of each is respected and accredited by good foundation to stand upon. Let us examine their every State; and by the terms of which, the delegated position. power is made supreme over all and each, only when In two States, South Carolina and Maryland, this exercised in pursuance of the constitution; and the question has been set at rest. In the former the debts powers not delegated nor forbidden to them are re of the State are not preferred. In the latter such debts served to the governments and people of the States; are given the preference. In the case of Commissionthus securing by this double system of governments ers v. Greenwood, 1 Desaussure's Eq. R. 450 (South (checks each upon the other), safety and respect among
Carolina), Chancellor Rutledge says: “ The idea of the the nations, and peace and safe commerce among our State retaining this prerogative * * * seems to be selves under the Federal Government; and justice, altogether a new one; the direction to executors and right and self-rule under the States, as the homes of administrators in the law of 1789," preferring debts the people.
due to the State, "plainly evinces it.” The court goes And this Union, through which we are one as to all on to say that this case does not depend upon the preinternational relations, as to all external and inter rogative. It is therefore not decisive. O'Neall, J. State oommerce, and as to all those general and com (State v. Harris, 2 Bailey, 599), said in his opinion: mon interests, delegated to it by the Constitution, "The preference is claimed on the ground that in Engwhile we are separate and exclusive as to all State in land it is a branch of the king's prerogative; but it is terests and rights — this great Union of free common oue, which I rejoice to have it in my power to say, has wealths, if preserved in its integrity by patriotic fidel not been extended to the State. If, however, it were ity to constitutional obligations, and by purity of ad a common-law prerogative of the crown, it does not ministration, from centralism in the head, and anarchy follow that it has been transferred to the State. * * among its members, is destined to do more for the * Monarchy is strictly a government for the benefit freedom and progress of the human race and for the of the king. A republic, on the other hand, is a gov. cause of Christian civilization in the world, than any ernment for the protection of the citizen against the system of governments ever devised by the wit of | exercise of all unjust powers. With this as the cardimen. Iu this sense, and with these deep convictions of nal object of the State government, it has no privithe truths I have uttered, my heart's desire and prayer leges, but such as are conferred upon it by the Constito God is for this Constitutional Union of States! tution, by act of the legislature, or such as are necesEsto perpelua!
sary for the due administration of the government. *
* * If it were true that it," this prerogative, “is an . THE STATE AS A CREDITOR.
incident of sovereignty, why is it that the United
States' government, which is unquestionably sover. VER eighty years ago Congress passed a law mak
eigu, as to the management of the revenue to be colU ing debts due to the United States preferred
lected under the Constitution, have found it necessary claims in all cases where assets were insufficient to sat
to pass acts, giving to a debt due to the government isfy creditors. It is strange that, while this matter the preference now claimed for the debt of the State; was settled so early with regard to the Federal govern and that in the construction of these acts, the United ment, the rights of this State to have its debts satisfied
States courts have confined the preference to the before private creditors are not asserted or denied cases described by the acts?" In this case taxes are either by our statute or by the decisions of the Court
admitted to be preferred claims on the ground of being of Appeals, except as to distribution by executors and liens. In Keckley's Executor v. Keckley, 2 Hill's Ch. administrators, in which case taxes are given the pre 256, it is said that the right of the State to be paid cedence. There were some laws in New York which
in preference to other creditors depends now altogave priority to personal taxes in cases of insolvency gether on the statute law." Two of these decisions in as well as of death, but these were repealed before the South Carolina are founded upon substantial reasonRevised Statutes were adopted.
ing. They refer to statutes which were passed when The question has indeed been decided for us in par the law was evidently understood to be against the ticular instances, but never in the court of last resort, prerogative of the sovereign power, and one of them nor at any General Term. Au opinion delivered in the is enforced by decisions in the courts of the Uuited N.Y. Common Pleas, Special Term, bears directly upon States. this subject. Receiver of Taxes v. Yonkers & N. Y. Fire In Maryland, however, the courts have sustained Ins. Co., June, 1872. It is there distinctly held that the opposite view. The reports do not contain the the State is a preferred creditor. The chief ground arguments which led to this conclusion. The cases of perhaps the only one - upon which this decision was State v. Rogers, 2 Harris & McH. 198, and Murray v. based was that the State had succeeded to the com Kidley's Administratrix, 3 id. 171, were decided in the mon-law prerogative of the king. The doctrine ex- | last century and are reported without any opinion of pressed in this opinion has recently been upheld in the the court except the mere decisious. The case of New York Supreme Court at Chambers, and in a dic State v. Bank of Maryland (1834), 6 G. & J. 205, is tum a judge of the Court of Appeals once stated that 'based upon the authority of the two early cases. Buchanan, C. J., there says (p. 226): “It is too late there- | quently work hardship among the owners of other fore, at this day, to deny the State's right at common | claims. However this may be, the difference between law, to have its debt first paid out of the property of the statutes is important in the settlement of this its debtor remaining in his hands, and no lien stand- question. ing in the way." These words do not show a very | The argument in favor of the State's right of prioremphatic approval of the doctrine. A dictum of Judge | ity is plainly stated above in the quotation from an Ruffin in North Carolina adds weight to the law as it opinion in the matter of the Columbian Ins. Co., viz. : stands in Maryland. Hoke v. Henderson, 3 Devereux, that the people of “the State have succeeded to all the 17. If a selection were to be made between the au prerogatives of the British crown, so far as they are thorities in South Carolina and those in Maryland, the essential to the efficient exercise of powers inherformer, by means of their sound reasoning, might be ent in the nature of civil government." Can it be more convincing than the latter.
said that the preference of the State's claims above The United States courts have recoguized the fact those of private creditors is essential to the efficient that the sovereign power as represented by the na- exercise of the powers of the State, including the power tional government has no right of preference inde of taxation? The answer to this question will only pendent of the statute-book. The United States form be of force as it is considered in the light of the ala fair example for the State to follow, as they repre ready existing decisions in our own courts and in those sent the king in those matters which are under their of the United States, South Carolina, Maryland, and control. “It," the Federal government, “is clothed the other States, while the arguments drawn from with the principal attributes of political sovereignty.” the statutes should not be overlooked. It is to be 1 Kent's Com. 208. In U. $. v. Bryan, 9 Cranch (U. hoped that before long the Court of Appeals will finally S. Supreme Court), 387, we find the following: “The settle this point for us, unless the legislat
ature renders court is of opinion that Hendrickson was indebted to such a settlement useless. ERNEST H. CROSBY. the United States before this act," preferring the United States as creditors, “passed, * * * and that, there JUDGMENTS FOR TORTS.-JOINT AND SEVfore, the law which secures a priority against the es
ERAL WRONG-DOERS. tates of persons who shall thereafter become indebted, does not apply to this case." This opinion clearly.
SUPREME COURT OF THE UNITED STATES, OCTOshows that our highest court denies the existence of
BER TERM, 1876.* any common-law prerogative touching this matter.
SESSIONS, plaintiff in error, v. JOHNSON, assignee. Another decision of the same character was that in
K. on April 5 mortgaged personal property to S. to secure U.S. v. Howland, 4 Wheat. 108, where it was held that
indorsements. S., owing defendant, assigned the mortthe United States had no priority unless the debtor gage to him to secure the debt. On October 4 K. gave
to G. a second mortgage for $4.000 (which was used to had assigned all his property according to a strict ren
pay note of K. indorsed by S. and G.) on the property dering of the statute.
which also covered other property. October 12 K. sold
the property for $6,000, of which sum G. received $3,500 The argument used by Chancellor Rutledge in Com
and defendant $2,500. S. paid nothing on the secured missioners v. Greenwood, cited above, derived from indorsements. November 2 bankruptcy proceedings
were commenced against K., and plaintiff appointed the statutory direction to executors and administra
assignee, who brought action against G. for the $3,500 tors, is of equal force in New York. In the case of received by him, and another for the money paid on
the notes. The first-named suit resulted in a judgReceiver of Taxes v. Yonkers, etc., Ins. Co., which af
ment for $1,000 which was satisfied, and the second was firms the right of the State, it is held that, “The State settled for $2.000 and G. was released. Held, (1) that
though the mortgage to S. was originally valid, he havnot being named in the provisions of the Revised Stat
ing paid nothing, the sum paid to defendant on it was a utes relating to the distribution of the estates of in preference, and defendant liable to the assignee there
for: and (2) that the judgment against G. and its satissolvent corporations, its rights are not affected by the
faction and the release did not bar an action therefor order of preference in payment there enacted, all against defendant. statutes being passed subject to the rights of the State, IN error to the Circuit Court of the United States it being an ancient prerogative of the king that his I for the District of Massachusetts. The facts appear rights were not affected by implication, nor unless he in the opinion. was expressly named in a statute.” In the list of pre Mr. Justice CLIFFORD delivered the opinion of the ferred claims in the case of testators or intestates (2 R. court. S., p. 87, 8 27), taxes due to the State find a place. Even without satisfaction a judgment against one Why, it may be asked, were any debts to the State of two joint contractors is a bar to an action against there mentioned, if its rights would have been the the other, within the maxim transit in rem judicatem'; same, had they been passed over in silence? Of course the cause of action being changed into matter of there is no objection to a declaratory provision. But record, which has the effect to merge the inferior why in the sections referring to insolvent debtors (2 R. remedy in the higher. King v. Hoare, 13 M. & W. 504. S., p. 46, SS 32, 33) and to receivers of corporations (2 Judgment in such a case is a bar to a subsequent R. S., p. 470, $ 79) is the State omitted? This discrep action against the other joint contractor, because the ancy seems to be significant. It may denote an in
contract being merely joint there can be but one retended difference in the order of distribution. There
covery, and consequently the plaintiff, if he proceeds may be some slight reason for the distinction. It is against one only of two joint promisors, loses his seto be presumed that executors and administrators
curity against the other, the rule being that by the generally have sufficient assets to pay the debts of the recovery of the judgment the contract is merged and deceased. Priority of payment would therefore give
a higher security substituted for the debt. Robertson preference to the State only in point of time, as the
v. Smith, 18 Johns. 477; Cowley v. Patch, 120 Mass. 138; estate is gradually converted into money. But in the
Ward v. Johnson, 13 id. 149; Mason v. Eldred, 6 Wall. case of the assignee of a debtor or of the receiver of a
236. corporation where the assets are always supposed to
* This decision was not handed down until the present be insufficient, the preference of taxes would fre- ' October torm, 1877.
But the rule is otherwise where the contract or ob- satisfied by the judgment debtor. They, the assignees, ligation is joint and several, to the extent that the also brought another suit against the same party to promisee or obligee may elect to sue the promisors or recover for the preference he obtained when the agent obligors jointly or severally, but even in that case the of the bankrupts paid three of their notes upon which rule is subject to the limitation tbat if the plaintiff the defendant in the last-named suit was indorser, obtains a joint judgment he cannot afterward sue which suit was settled by the payment of $2,000 and a them separately, for the reason that the contract or release given by the assignees of all their claims against bond is merged in the judgment; nor can he main the defendant in that suit. tain a joint action after he has recovered judgment Beyond doubt the first mortgage was valid, but it against one of the parties in a separate action, as the was given to secure the mortgagee as indorser for the prior judgment is a waiver of his right to pursue a mortgagors, and, inasmuch as the defendant failed to joint remedy.
prove that the mortgagee had taken up any paper on Different modifications of the rule also arise where | which he was so liable, it is evident that the defendthe controversy grows out of the tortious acts of the ant derived no right to the proceeds of the property defendants. Where a trespass is committed by sev paid to him by virtue of that mortgage. Nothing eral persons, the party injured may sue any or all of having been paid by the defendant as indorser for the the wrong-doers, but he can have but one satisfaction bankrupts, the money paid him for the release of his for the same injury, any more than in an action of mortgage was plainly a preference by the way of inAssumpsit for a breach of contract.
demnity. Proceedings in bankruptcy were comCourts everywhere in this country agree that the menced within four months thereafter, and the asinjured party in such a case may proceed against all signees brought the present suit in the District Court the wrong-doers jointly, or he may sue them all or any against the defendant to recover back the proceeds of one of them separately, but if he sues them all jointly so much of these notes given to the defendant for the and has judgment he cannot afterward sue any one of release of his mortgage from the bankrupt debtors, them separately; or if he sues any one of them separ the claim being that the amount was paid to secure ately and has judgment he cannot afterward seek his the defendant for his indorsements for the insolvent remedy in a joint action, because the prior judgment debtors, he having reasonable cause to believe that against one is, in contemplation of law, au election on they were insolvent, and that the payment was made his part to pursue his several remedy.
to prevent the property from coming to the assignees Where the injury is tortious the remedy may be for distribution and to impede and evade the provisjoint or several, but the rule in this country is that a ious of the bankrupt act.' judgment against one without satisfaction is no bar to Service was made and the defendants appeared an action against any one of the other wrong-doers. and pleaded the general issue, and that the plaintiffs Lovejoy y. Murray, 3 Wall. 10; S. C., 2 Cliff. 196; Liv. previously recovered judgment against E. A. Goodnow ingston v. Bishop, 1 Johns. 291; Drake v. Mitchel, 3 for the value of the same property and that the said East, 258.
judgment has been fully paid and satisfied. Sufficient appears to show that the bankrupts, Kane, Issue being thus raised, the parties went to trial, Sprague & Co., on April 5, 1870, mortgaged their stock, and the verdict and judgment were for the plaintools, fixtures and machinery to W. W. Sprague to tiffs in the sum of $2,786.56 and costs of suit. Excepsecure him as their 'indorser; that the mortgagee, tions were filed by the defendant and he removed the on the thirteenth of the same month, assigned the cause into the Circuit Court, where the parties were mortgage to the defendants below as security for a again heard, and the Circuit Court affirmed the judge debt due from the mortgagee to the assignee of the ment, and the defendant removed the cause into this mortgage. On the 4th of October following, the court. bankrupts made a second mortgage, including the Five errors are assigned to the effect following: (1) property described in the first mortgage, together Because the District Court did not instruct the jury with other property, to E. A. Goodnow, for $4,000, that the action is not maintainable, the assignees have which sum the mortgagee paid to the mortgagee of ing disaffirmed the sale of the goods and received the the first mortgage, as the agent of the bankrupts, value of the property. (2) Because the District Court and which he, the agent, used in part to pay three did not instruct the jury that the plaintiffs were estopnotes given by the bankrupts, upon which the mort ped by their previous proceedings from maintaining gagees in both mortgages were indorsers. Eight days the suit. (3) Because the District Court did not inlater the bankrupts sold the whole property covered struct the jury that the plaintiffs could only have judg. by the mortgages to Nichols and Johnson, and re ment for the value of the property, deducting the ceived in payment their notes and those of Henry W. amount previously recovered. (4) Because the DisSnow, to the amount of $6,000, which they divided trict Court did not instruct the jury that the plainbetween the said mortgagees, as follows; $2,444.40 to tiffs could not recover the proceeds of the property in the first mortgagee and $3,556.60 to the second mort the hands of the mortgagee so long as any contingagee, the said mortgagees releasing their respective gent liability remained. (5) Because the issue submortgages.
mitted to the jury, whether the defendant had paid Bankruptcy proceedings against the mortgagors in any thing for the bankrupts was an immaterial one, it the two mortgages were commenced on the 2d of No there was any outstanding and undischarged indorsevember in the same year, and the plaintiffs were duly ment of the defendant for which he was liable. appointed assignees of the bankrupts' estate. Subse Separate mortgages were held by the defendant and quently they sued the mortgagee in the second the other mortgagee, of different dates, and it appears mortgage to recover the value of the property cov that they were given for entirely different consideraered by his mortgage, and judgment was, by agree. tions. Of course 'the respective mortgagees held the ment, entered in their favor for $4,000, interest and property subject to an equity of redemption in the cost, and the evidence showed that the judgment was ' mortgagors, and the caso shows that the mortgagon sold the respective equities of redemption and distrib- | in payment of the notes upon which he was liable as inuted the proceeds of the sale between the respective dorser, which action was compromised by the payment mortgagees. Throughout the relations of the mort to the assignees of $2,000, as appears by the agreed gagees to the insolvent debtors were entirely separate. statement of facts. Such payment being made the They never held any joint claim against the insolvent assignees executed a release to the defendant in that mortgagors, nor did the mortgagees ever receive any | suit of all claims and demands which they. such asjoint security from the insolvent debtors for their signees, had agaiust him on that account. separate claims. Instead of that the respective Judgments bind parties and privies, but they do not equities of redemption remained in the mortgagors, bind strangers, and it is clear that the present defendand the conceded facts show that they sold the equities ant was neither a party nor privy to the action in the and distributed the proceeds between the respective first suit, nor had he any thing to do with the commortgagees, showing to a demonstration that there promise of the second suit between those parties. never was any joint contract relation between the Enough appears in the evidence to establish that mortgagees and the insolvent debtors.
theory, but if any possible doubt could otherwise Even the proceeds of the sale of the equities of re arise in respect to the conclusion, the matter is set endemption, as distributed between the respective mort tirely at rest by the verdict of the jury. They were gagees, were entirely separate, nor would it make any told by the court that if the plaintiffs had once redifference if the mortgagees in receiving their re ceived full satisfaction for the proceeds of the sale spective portions of those proceeds had acted jointly, from the other mortgagee, “then they can recover as it is well-settled law that where the tort is joint the nothing from the defendant,” and it follows from injured party may have a joint or several remedy, the the verdict that they did not recover in the suits rule being that a judgment against one wrong-doer against the other mortgagee any thing for the portion without satisfaction is no bar to an action against any of notes taken for the sale of the equities which was one of the other joint tort-feasors. Lovejoy v. Mur distributed to the defendant in the present suit. All ray, 3 Wall. 10.
that he received remains in his hands, and inasmuch Joint wrong-doers may be sued separately, and the as the assignees are not estopped by the proceedings plaintiff may prosecute the same until the amount of against the second mortgagee from prosecuting their the damages is ascertained by verdict, but the injured claim against the defendant for the portion of the party can have only one satisfaction, the rule being proceeds of the equities of redemption which was disthat he may make his election de melioribus damnis, tributed to him by the insolvent debtors, it follows which, when made, is conclusive in all subsequent that the assignee may recover the whole amount of proceedings. Heydon's Case, 11 Co. 50; White v.
that portion without regard to the antecedent proPhilbrick, 5 Greenl. 147; Knickerbocker v. Colver, 8 ceedings against the second mortgagee, which is all ('ow. 111; O'Shea v. Kirker, 4 Bosw. 120.
that need be said in response to the third assignment Without more, these remarks are sufficient to show of error. that the theory of estoppel cannot be maintained and
[The remainder of the opinion is devoted to immathat the first two errors assigned must be overruled
terial matters. ] for two reasons: (1) Because the relation of joint
Judgment affirmed. contractors never subsisted between the insolvent debtors and the mortgagees to whom the proceeds of the equities of redemption were distributed by the
NOTES OF RECENT DECISIONS. insolvent mortgagors. (2) Because the mortgagees Arrest: assault by police officer: aggravated assault.acted separately in accepting certain portions of the An officer having a prisoner in custody, who refuses to proceeds of that sale; nor would it have made any | proceed further and pulls away from him, may handle difference if they had acted jointly, as it is settled by him roughly if necessary, or call others to aid him; all the authorities that when several persons have but the officer has no right to assault him to make him been jointly concerned in the commission of a wrong go when he stops. Sup. Ct., Texas, June 30, 1877. ful act they may all be charged jointly as principals, Skidmore v. State. or the plaintiff may sue any one of the parties sep-| Constitutional law: regulation of inter-state comarately, torts being in their nature several, even when merce: liability of owner of vessel : statutory constructhe wrongful act was jointly committed. Addison tion.—Where a vessel running upon the ocean between on Torts (3d ed.), 939.
ports of the same State carries merchandise between Suppose that is so, still it is insisted by the defend such ports, destined to points in other or foreign ant that the plaintiff cannot, in any proper view of States, on through bills of lading, or carries passengers
ecover more than the difference between between such ports, destined to points in other States the amount paid by the other mortgagee and the value or foreign countries, upon through tickets, she is enof the property distributed. What the plaintiffs claim gaged in inter-state and foreign commerce, and, as is the amount the defendant received from the insol. an instrument of such commerce, is subject to the vent debtors as part of the proceeds of the sale of the regulating power of Congress; and the provisions of equities of redemption. Abundant proof is exhibited section 4283 of the Revised Statutes, limiting the that he received $2,444.40, and it is conceded that the liability of owners, are applicable to such vessel. Where whole of that amount remains in the hands of the de- such a vessel also carries merchandise from one port fendant.
to another port of destination in the same State, the Two sums, amounting in the whole to $6,000, were provisions of section 4283 of the Revised Statutes, received by the plaintiffs of the second mortgagee be limiting the liability of owners of vessels for losses fore the present suit was instituted; $4,000 of the occurring without their privity or knowledge, are apamount was recovered by judgment in favor of the plicable to such merchandise, as well as to merchandise plaintiffs. They also instituted a second suit against destined to other States or foreign countries. A party the same party to recover the amount received by him using for the transportation of his goods an instru
ment of commerce, which is subject to the regulating due on whisky distilled by the several parties named power of Congress, must use it subject to all the limi in the indictment, and it was alleged that, in pursutations imposed upon its use by Congress. The word ance of that conspiracy, other parties than defendant, “privity" of the owner, used in section 4283 of the who were his co-conspirators, did unlawfully remove Revised Statutes, means some fault or neglect in which said whisky, held, that such conviction would be a the owner of the vessel personally participates; and bar to another indictment against the defendant, charg“knowledge,” as used, means some personal cogniz ing him with aiding and abetting this same removal, ance, or means of knowledge, of which he is bound to and that the plea of pardon is a bar to the present avail himself, of a contemplated loss, or of a condition suit. U. S. Ciro. Ct., E. D, Missouri, Sept. 28, 1877. of things likely to produce or contribute to a loss, United States v. McKee (Chicago Leg. News). without adopting appropriate means to prevent it. Juror; remarks made by, to escape jury duty: disWhere the owner is a corporation, the privity or closing conduct in jury room.- Grossly improper reknowledge of the managing officers of the corporation marks by a juror before his qualificatiou may be exis privity or knowledge on the part of the corporation plained by him, and if made solely for the purpose of itself. U.S. Circ. Ct., California. Lord v. The G. N. avoiding jury duty,they will not render him incompe& P. S. S. Co. (San Fran. L. Jour.).
tent. A juror will not be heard to impeach the verContract: note made on Sunday.--A note for the dict by disclosures of what took place in the jurypurchase-money of land, executed on Sunday, is void, room in the course of the deliberations. Sup. Ct., although the trade for the land was made the day Georgia, Oct. 2, 1877. Moughon v. State. before, and the note was taken on the day in question, Mortgage: deed and defeasance: unrecorded defeasolely to accommodate the maker. Inasmuch as the sance.--An absolute deed and defeasance, made at the plaintiff was a party to the illegal agreement that the same time, constitute a mortgage; but, if the defeanote should be made on Sunday, the courts will not sance be not recorded, it is to be considered as an unaid either party to enforce its collection, but leave the recorded mortgage, and postponed to a judgment of parties where it finds them. Sup. Ct., Georgia, Oct. 2 subsequent date, notwithstanding the absolute deed 1877. Morgan v. Bailey.
has been duly recorded. Sup. Ct., Pennsylvania, May Corporation: special charter: insurance company : 28, 1877. Co1pmam v. Baccartoo. ultra vires : re-insurance.- An insurance company in Shipping: duty of owner in fitting up ship: seaworcorporated under a special act is as much subject to thiness: master and crew: compasses. The owner is the general insurance law of the State as if incorpo. bound to exercise the utmost care in the selection of a rated under the general law of the State. The direct competent master and crew, and in providing a vessel ors and officers of a mutual life insurance company in all respects seaworthy; and if, by reason of any have no power in the name of such company, against neglect or fault in these particulars, a loss occurs, the the wishes of any of its policy-holders, to transfer all owper is in privity within the meaning of the statute. its assets to another company, under the pretense of If the owner exercises due care in the selection of the reinsurance, or otherwise, and a contract entered into master and crew, and in providing a seaworthy vessel, for such purpose is ultra vires and void as to such dis and a loss afterward occurs, without his privity or senting policy-holders. The power given to an insur knowledge, through the negligence of the master or ance company in its charter to reinsure any risk or crew,or from some secret defect in the ship or its equiprisks of said company does not empower it in one ments, whicb could not have been discovered or contract to reinsure all its risks, dispose of all its as avoided by the exercise of proper care on his part, the sets, turn its policy-holders over to a stranger company, owner's liability is within the limitation of the statand thus deprive itself of the power to insure. St.
ute. In order to be seaworthy a ship must be fur. Louis Court of Appeals, Jan. 29, 1877. Price v. St. nished with suitable compasses. Where a vessel is Louis Mut. Ins. Co. (Cent. L. Jour.).
properly officered and manned, and in all respects seaDamages: measure of, in breach of contract. In a worthy, when she leaves port, and a loss occurs from suit for breach of contract to deliver specific articles the subsequent negligence of the master or crew, at a certain time, the measure of damages is the high or from other causes arising during the voyage, withest price for which said articles might have been sold out the privity or knowledge of the owner, the owner's from the time of such failure to deliver them to the liability is within the limitations prescribed by the time of trial. Sup. Ct., Texas, April 28, 1877. Heil statute. Where the ship is provided with several corraner v. Douglass (Texas L. Jour.).
rect compasses, and one compass, from any cause, deFormer conviction : conviction by court having no ju viates, if the master, by the exercise of ordinary care risdiction.--- Appellant was indicted for an aggravated and skill, can discover the deviation, and correct the assault; tried and convicted of a simple assault. In deviating compass by the others, and thus be able to support of a plea of autrefois convict, he offered a trans steer the proper courses, the ship is, in this respect, cript of the mayor'a court of McKinney, The State seaworthy. U. S. Circ. Ct., California. Lord v. The objected, because the mayor's court had no jurisdic G. N. & P. S. S. Co. (San Fran. L. J.). tion of the offense, which objection was sustained.
Title: to personal property: of agent or factor in goods Held, that the plea of autrefois convict presented no for sale.-Plaintiffs delivered to one Miller a stock of defense to the prosecution in this case; that the Con liquors to sell on commission, as their agent or factor, stitution of 1869 repealed so much of the laws as con for them and in their name, with the understanding ferred upon mayors the jurisdiction of justices of the that Miller would open a store, proceed to sell the peace. Sup. Ct., Texas, June 30, 1877. Bingham v. | goods, bear all the expenses of carrying on the busiState.
ness, account to plaintiffs for the proceeds at an agreed Former conviction : when a bar: plea of pardon.- | invoice price, retaining as compensation for his serWhere the defendant was tried and convicted for a vices and expenses whatever might be realized thereconspiracy to defraud the government out of the taxes from over and above such invoice price: it being also