Imágenes de páginas

premium; and, as it appears that the said property | aided by the presumption that as the chief executive was destroyed by fire on the 29th day of October, 1872, officer and manager he must have been clothed with whereby loss and damage accrued to the complainants some powers and duties which necessarily belonged to to the whole amount of the said insurance, and that those positions. Ib. due proof and notice of such loss was given, and that the 3. Implied contract to pay for services performed for premium for said insurance was tendered and refused, corporation.—Where a person is employed for a cor. it should be further decreed (see Taylor v. Merchants' poration by one of its officers assuming to act in its Ins. Co., 9 How. 405; Perkins v. Washington Ins. Co., behalf, and goes on and renders the services accord4 Cow. 666; Carpenter v. Mutual Safety Ins. Co., 4 ing to the agreement, with the kuowledge of its otiiSandf. Ch. 410), that the defendant pay to the said cers, and without notice that the contract is not recomplainants the said sum of four thousand dollars cognized as valid and binding, and such corporation (less the amount of said premium) with interest and avails itself of such services and receives the benefit costs.

thereof, it will be held to have sanctioned and ratified

the contract, and be compelled to pay for the services GENERAL TERM ABSTRACT.

according to the agreement. Having availed itself of

the services and received the benefits, it is bound in SUPERIOR COURT OF BUFFALO- MAY TERM, 1877.

conscience to pay, and will not be heard to say that

the original agreement was not made by a person CORPORATION.

legally authorized to contract. Ib. 1. Authority of president to employ agents may be inferred from the nature of the business of the corpora

EVIDENCE. tion, etc.: receiving the benefit of agent's services 1. Opinion of witness as to value.-To entitle the amounts to a ratification of the contract of hiring.- opinion of a witness as to value to be received in eviThe plaintiffs were coal merchants at Buffalo. The de- | dence, he must be first shown to have such knowledge fendant was a corporation, engaged in the business of of the situation, condition, quality and value of the mining, shipping and selling coal. An agreement was property, by reason of having dealt in it, or for other made between the plaintiffs and defendant's president reasons, as makes him specially competent to form a and manager (M.) by which the plaintiffs were to act reliable and accurate opinion. Smith v. Holbrook. as defendant's agents at B., for the sale of its coal to Opinion by Jas. M. Smith, J. Canadian railroads, and to receive a commission of ten 2. When opinion not admissible.—The property in cents per ton on all coal sold and delivered. There question was situated upon Beaver Island, in Lake after one of the plaintiffs, at the request of M. and | Michigan; it had a water front, upon which was a W., the secretary and treasurer of defendant, accom dock, a warehouse, etc. A witness testified that he panied them to Montreal to assist them (aud did ma- | had been for 25 years a sailor, navigating the lakes; that terially assist them) in negotiating and securing a he visited Beaver Island in 1855, and had often stopped contract with a railway company to furnish and de there since with his vessel to get wood; that in 1868 liver to it 30,000 tons of defendant's coal. At the foot he lost a vessel there and was on the island a considof this contract a memorandum was made referring to erable time: that he knew this dock, and stopped there the plaintiffs as the defendant's agents at B., and in 1 in 1868; that he knew the business carried on there, and the estimate of the expenses to be incurred in per the general character of the vessels which come there, forming the contract, the defendant set down as | and what the property is used for, but did not know an item the commission to be paid to the plaintiffs. the cost or value of the buildings or improvements; The defendant delivered to the railway company that he uever owned any real estate there, nor nego30,000 tons of coal, receiving therefor $4.85 per ton, and, tiated for the purchase of any, and never knew of the as a part thereof, the very item of ten cents per ton sale of any, and never did any business there except for plaintiffs' commission. A principal purpose in to get supplies for his vessel. Held, that his opinion employing plaintiffs was to secure their aid to the de as to value was not admissible. Ib. fendant in obtaining such contracts with the Canadian railways. Held, that as the employment of agents to

INDORSEMENT. effect sales of its coal was necessarily incident to de 1. Indorsement of note : colluteral security: when infendant's business, the authority of its president and dorsee of note not entitled to securities held by indorser. manager to employ plaintiffs as agents, and to agree to -Where a creditor, who holds a collateral security for give them a reasonable compensation for their ser- a debt — for example, a bond secured by a mortgage vices, might be inferred from the facts and circum | sells and transfers the debt, such sale carries with it stances of the case, and that the question was, upon the collateral security, the debt being the principal the evidence, properly submitted to the jury. Held, thing and the security but an incident which attends also, that the facts showed a ratification and adoption it. But this principle, as it arises out of equitable of the contract made with the plaintiffs. Lee v. considerations, is applicable only in those cases in Pittsburgh Coal & Mining Co. Opinion by Jas. M. which equity requires that it should be, and never to Spitb, J.

the injury or against the equitable rights of the as2. What necessary to bind corporation.- In order to signor. Vose v. Scatcherd, as receiver, et al. Opinion bind the corporation by the act or contract of its by Jas. M. Smith, J. president and manager, it is not essential to prove that 2. Right of indorsee does not resemble that of surety. his power and authority was expressly conferred by –The right of the indorsee of a note, or the assignor the board of directors, but his authority to make a of a debt, to the securities given to the original credcontract or do an act may be inferred from all the itor, is in its nature like the right of a surety to refacts and circumstances of the case, from the nature | quire from the creditor a transfer of whatever secuof the business of the corporation, and the nature and | rities were given by the principal to the creditor. But character of the contract made or act performed, | where a creditor holds securities for the protection of

and which are common to several distinct debts, a Criminal law: conspiracy: partnership.-A comsurety by the payment of one, or any part of such biuation between one member of a partvership debts, acquires no right to be subrogated to any part and a third person to issue and put in circulation of the securities. His right is to stand in the place of the notes of the firm, drawn by such partner for the the creditor, and he must take that place, if at all, purpose of paying his individual debts, the intention wholly and entirely, not in part; he must take it with of the combination being fraudulent, is an indictable all its burdens; he must pay all the debts for which conspiracy. State v. Donaldson, 3 Vroom, 154; Reg. v. the securities are held. He will then be entitled to Warburton, L. R., 1 C. C. Res. 274. New Jersey Sup. every remedy which the creditor has against the prin Ct., June, 1877. State v. Cole (Somerset Gazette). cipal debtor, not only through the medium of con Contract: personal services : payment for, conditioned tract, but by means of all securities for its perform upon sale of realty: failure of sale through the acts of ance. Ib.

the vendor : burden of proof.-The vendor of a tract 3. Transfer of note carries collateral security with it. of land employed A to perform certain services, payThe defendants, the B. Car Co. and the B. and J. Rail- ment for which was conditioned upon the payment of road Co., agreed that certain freight cars, owned by the the purchase-money by the vendee. Afterward a part Car Co., should be delivered to the Railroad Co., and of the purchase-money having been paid, the vendor that the latter should give its five several promissory released the vendee and accepted a new purchaser in notes, payable to the Car Co.'s order, at 12, 14, 15, 16 and bis place, who, however, failed to pay the balance of 17 months respectively, but that the title to the cars the purchase-money. In a suit by A to recover the should remain in the Car Co. until payment of all the value of his services, held, that he could not recover notes, when a bill of sale would be given; but in case without showing either payment of the whole purof a failure to pay either of the notes when due, the chase-money or a prevention of payment by the acts Car Co. should be entitled, at its election, to take pos of the vendor. Held, further, that the burden of proof session of the cars and sell them; the proceeds of the was upon A to show that the release of the first pur. sale to be applied on the unpaid notes, and the balance chaser was without cause and prejudicial to his rights, to be retained by the Car Co. as rental for the use of and therefore amounted to a prevention of the sale. the cars. The notes were, accordingly, made and de Sup. Ct., Pennsylvania, Feb. 5, 1877. Norris v. Maitlivered to the Car Co., and the cars delivered to the land (W. N. Cas.). Railroad Co. The 12 months' note, before it became Criminal pleading: election.-Where upon the trial due, was sold and indorsed by the Car Co. to the plain- of an indictment, in which the time alleged for the tiffs, who recovered judgment thereon against the | commission of the offense is not material, the evidence Railroad Co., and execution returned unsatisfied. The tends to prove an offense committed on a day other Car Co., for a valuable consideration, extended the than that alleged in the indictment, and a precisely time for the payment of said notes, and allowed the similar offense committed on the day alleged in the Railroad Co. to remain in the possession of the cars and indictment, the State may elect for which it will prouse them long after plaintiffs' uote became due. Held ceed. If a party does not object to evidence offered, (on demurrer), that no right, benefit or interest, legal it is discretionary with the trial court to grant or reor equitable, in the cars or in the agreement passed by fuse his motion after it is received to strike it out upon the indorsement of the note to the plaintiffs, and that an objection which was apparent to him, and which he they were not entitled in equity to have the cars sold might have made when the evidence was offered. Sup. to satisfy their judgment. Ib.

Ct., Minnesota, May 31, 1877. State v. Johnston (N.
W. L. Rep.).

Divorce: counter charge : when adultery of plaintif

not bar.-In an action for divorce, upon any other Bailment: rights of pledgee as to disposition of pledge. ground than that of adultery, the adultery of the -A pledgee may sell a pledge if uvredeemed in his plaintiff is not a bar to the action. But if the plainhands, and his vendee under such sale will hold the tiff claims in her complaint alimony, her adultery may pledge as against the pledgor until the amount it was be pleaded and proved as a defense, in whole or in part, pledged to secure is paid. Such vendee takes all the to that claim. Sup. Ct., Minnesota, May 31, 1877. interest of the pledgee in the pledge. Before the Buerfening v. Buerfening (N. W. L. Rep.). pledgor can maintain replevin, he should tender to the Election: votes cast at, presumed to be all the legal person holding the pledge the amount for which the votes.-The presumption is that the vote cast at an pledge was given. Sup. Ct., Illinois, Juue 22, 1877. election, held according to law, is the vote of the whole Bradley v. Parks (Chic. Leg. News).

number of legal voters, and this presumption cannot Criminal evidence : existence of secret organization to be rebutted by proof of the number of votes cast at establish motive.- Upon a trial for murder it appeared an election held in the preceding year. Sup. Ct., Illithat, although the crime was instigated by one who nois. Melvin v. Lisenby (Cent. Law Jour.), wished to avenge a private injury, yet it was actually Insanity: contracts by insane persons when not set executed by the prisoners who were strangers to the aside.-Where persons apparently of souud miud, and murdered man, and had no cause of eumity against | not known by the adverse party to be otherwise, enter him. To explain the motive for the crime, the Com into a contract which is fair and bona fide, and which monwealth offered to prove the existence of a secret is executed and completed, and the property which is and criminal organization which furnished men from the subject of the contract cannot be restored so as to one division to commit murder, and in return ob | put the parties in statu quo, such contract cannot be tained men from the division to which the instigator set aside either by the alleged lunatic, or those who of the crime belonged to murder a man obnoxious to represent him. Sup. Ct., Illinois, June 22, 1877. Scanthe first division. Held, that this evidence was prop- lan v. Cobb (Chio. Leg. News). erly admitted. Sup. Ct., Pennsylvania, May 7, 1877. Juror: when competent: opinion of prisoner's guilt: Carroll v. Commonwealth (W. N. Cas.).

when of such a character as to disqualify juror.-A

juror, who has formed an opinion of the prisoner's come sufficient to turn stock. So long as stock can pass guilt, is not thereby disqualified from serving, unless at will, from the premises of one to those of the other, his opinion be founded upon the evidence to be given adjoining proprietors are occupying in common withor has become a fixed belief. A juror testified on his out a partition fence. An owner of premises occupied roir dire that he had a fixed opinion from what he had as aboye, may throw any portion of the same, not less read, but that it was not such an opinion as would than twenty feet in width, to common, upon giving six influence him in any degree as a juror to give undue months' uotice to the adjoining owner. Sup. Ct., weight to evidence against the prisoner, and that he Iowa, April, 1877. Miner v. Bennett (West. Jurist). felt certain he could divest his mind of all prejudice Vendor and vendee : sale of chattels : warranty: evicand be controlled only by the evidence. Held, that tion: misrepresentation of title: sale of patent.-Where he was competent, inasmuch as he had no fixed belief of defense is made to the payment of purchase-money for the guilt of the prisoner, and had no opinion founded breach of warranty of title, there should be proof of upon the evidence to be given. Sup. Ct., Pennsylvania, eviction or of an involuntary loss of possession. While May 7, 1877. Curley v. Commonwealth (W. N. Cas.). the vendee holds the covenant aud retains the posses

Mechanics' lien : subordinate to prior mortgage : at siou he cannot withhold the purchase-money. B. sold taches to building only.-A mortgage was executed on to K. all his right, title, and interest in and to certain certain land, upon which was stauding an old paper personal property, and in and to a patent right for a mill. The mortgagors afterward tore down the old sum to be paid by weekly installments. K. took posbuilding in part and erected a new one, more in the session of the property and paid the installments as nature of repairs or enlargement of the old one. Held, they fell due for nearly two years, and then declined that the mortgage was a paramount lien on the land to make further payments. In an action for the baland building. Where the claim of B. & S., for engine ance of the purchase-money, K. offered to prove that and pump to run the paper mill, and their lien thereon B. had no title at the time of sale, having parted with was subsequent to the other liens thereon, held, their his interest some months previous to W., from whom mechanics' lien did not lie upon the articles furnished, K., within a month after his purchase from B., again but upon the building itself. Sup. Ct., Iowa, April, purchased the property, and that he did not go into 1877. Equitable Ins. Co. v. Slye.

possession until after such purchase from W.; also Partnership: agreement to indemnify retiring partner

that the patent was a nullity, and that at the time of against existing contracts of the firm: presumption as to

sale B. represented himself to be the owner of oneknowledge of liquidating partner with regard to such

half of the patent, whereas he had previously parted contracts : evidence: proof of contents of letters: what

with all his interest therein. The court below excluded not admissible: parol proof corroborative and expland

this evidence: Held (affirming on this point the court tory of matters of record.-It is the duty of a partner

below), that no eviction having been proved, the defect who has agreed to indemnify his retiring copartuer

of title in the vendor constituted no defense; but, held from existing contracts and obligations of the firm, to

(reversing the judgment of the court below), that the Ascertain the extent and nature of a liability of the

representation of the vendor that he owned an interest existence of which he has knowledge, aud, if he fail to

in the patent, when in fact he did not, was a fraud do so, his ignorance thereof is no defense to an action

which the vendee was entitled to set up as a defense. for not keeping the retiring partner indemnified. An

Sup. Ct., Pennsylvania, May 7, 1877. Krumbhaar v. authorized agent of the firm of A & B procured pat

Birch (W. N. Cas.). terns for the firm, agreeing to return them imme

Warranty on sale of personal property.-Where dediately after using. They were not returned. Upon

fendants sold plaintiff a worthless reaping and mowing a dissolution of the firin, A agreed "to save and keep

machine, and warranted it to be good for the purposes harmless" B from all existing coutracts and obliga

for which it was intended, plaintiff is entitled to tions. Suit was brought against B for the value of the

recover, and the measure of damages is the difference patterus. B gave notice of the suit to A, calling upon

between the actual value of the machine and what it him to defend. This A declined to do, upon the

would have been worth if it had been as warranted, ground that he had no knowledge of the contract to

with interest at six per cent. And plaintiff's right to return the patterns. Judgment having been rendered

recover is not affected by the fact that the purchasoagainst B, he brought suit against A for damages :

money was paid after the defects were discovered, Held (reversing the judgment of the court below), that

where the plaintiff had tendered back the machine, A, kuowing that the patterns did not belong to the firm,

and only retained it in order that the plaintiff might, and having them in his possession, was bound to find

by furnishing new gearing, make the machine as good out all the duties and obligations of the firm concern

as warranted. Opinion by Nortou, J. Courtney et al. ing them. Sup. Ct., Pennsylvania, Oct. 9, 1876. Far

v. Boswell. rington v. Woodward (W. N. Cas.).

Probate of will: when formal notice not necessary to conclude legatee.- Where a legatee under a will is shown

COURT OF APPEALS ABSTRACT. to have had actual knowledge of proceedings to set it

APPEAL. aside, he cannot be permitted to come in afterward and review the controversy, on the ground that legal

When not allowable: order not granting new and formal notice had not been served on him. Sup. trial.-An action was tried before the court which Ct., Pennsylvania, Nov. 24, 1876. Appeal of Johnston, made certain findings of fact and conclusions of law Connell's estate.

and gave judgment. On appeal the General Term reReal estate: tenancy in common: hedge, how far a parti versed the judgment but did not order a new trial, tion fence.-Hedges plauted upon the division line be- and no judgment was entered on the order of the Gentween premises do not attain the character of a parti eral Term. Held, that no judgment could be rention feuce, s

so as to impress upon the respective owners | dered by this court, the appeal not being from an the character of occupancy in severalty, until they be- Torder granting or refusing a new trial, nor from a final judgment. Appeal dismissed. Rust v. Hansels. crossing should be run. (Richardson v. N. Y.C. R. Opinion by Rapallo, J.

R. Co., 45 N. Y. 846, and Mackey v. N. Y. C. R. R. Co., [Decided May 22, 1877.)

35 id. 75, distinguished.) Cordell v. N. Y. C. and H. CARRI ER OF PASSENGERS.

R. R. R. Co. Opinion by Church, C. J. Railroad company owning two lines between same [Decided June 12, 1877. Reported below, 6 Hun, 461.) terminal points need carry only over shorter one.

PARTIES. Plaintiff purchased a ticket from Lockport for Troy 1 In action for fraud in sale of real estate : when person over the defendant's railroad. The ticket read simply not named in contract may maintain action.- Plaiu“Lockport to Troy," and did not indicate what route tiff's husband made a contract under seal in his own to take. From Rochester to Syracuse, which is a part name for the purchase of real estate. He acted as the of the route from Lockport to Troy, defendant has agent of his wife and this was known to the vendor, two roads, one, the short route, over which all through and the wife was present during the negotiations, paid trains go, and the other, a longer route. Held, that the consideration and thereafter received the deed the contract by defendant was to carry plaintiff over which was executed in pursuance of the contract and the usual and most direct route, and if he chose to go took possessiou of the real estate and occupied it. by the longer one defeudaut was entitled to charge Held, to be sufficient to give her a right to maintain an him extra for traveling thereou. Judgment below action in her own name against the vendor fouuded on affirmed. Bennett v. N. Y. C. & H. R. R. R. Co. Opin fraud and misrepresentation in making the sale. ion by Church, C. J.

Judgment below affirined. Beardsley v. Duntley. [Decided May 22, 1877. Reported below, 5 Hun, 599.) Opinion by Miller, J. FIRE INSURANCE.

[Decided May 22, 1877.] 1. Insurance of interest of mortgagee: subrogation.

PARTNERSHIP. By a policy of insurance against fire upon mortgaged 1. Dissolution of: notice to those dealing with firm: real estate issued to the mortgagee upon “ber in- who is a dealer: agent.--Plaintiff was an agent employed terest as mortgagee,” it was provided that “in case by the firm of D. B. & Co. to purchase lumber for it. of loss the assured shall assign to this company an Held, a dealer with the firm, so as to eutitle him to the interest in said mortgage equal to the amount of protection of the rule which makes a retiring partner loss paid.” The mortgage contained the usual clause liable for subsequent engagements made by his former for insurance by the mortgagor, and in case of default copartuer in the firm name with those who had preprovided that the mortgagee might make such insur vious dealings with the firm and who entered into the ance and the premiums paid should be deemed se- new transaction without notice of the change in the cured by the mortgage. The insurance was made by partuership. Judgment below affirmed. Austin v. the mortgagee who ashed the owner of the mortgaged Holland et al. Opinion by Andrews, J. premises to repay it, and he promised to do so and 2. Notice by mail, when insufficient: question of fact.said it was all right, and the mortgagee instructed her The firm did business at Toledo, Ohio; plaintiff resided attorney to collect the insurauce with principal and at Detroit. Notice of the dissolution of the firm was interest upon the mortgage. Held, that in case of published in the Toledo papers, and a copy was mailed loss and payment of the insurance to the mortgagee, to plaintiff at Detroit. Plaintiff denied ever receiving the insurers were entitled to an assignment of the the notice. Held, that actual notice to plaintiff was mortgage and were not affected by any agreement or necessary; that merely mailing the notice was not transactions between the owuer of the mortgaged | sufficient if it was not received, and that whether it premises and the mortgagee. Judgment below re was received was a question of fact for the jury. Ib. versed. Foster et al., trustees, v. Van Reed. Opinion 3. Presumption as to letters sent by post. - When letby Miller, J. Church, C. J., dissented.

ters are sent by post to a party at his residence it is 2. Owner of mortgaged premises prevented insuring presumed that they were received by him in due by act of mortgagee : effect of.-Held, also, that a claim course. But this is a presumption of fact and not of by the owner that the mortgagee by her declarations law and may be repelled by proof. Ib. prevented him from insuring in his own behalf did [Decided May 22, 1877.] not estop either her or her assigns from denying that

SHIPPING. the money received for insurance was to be applied 1. Steam-tug and canal boat towed by it: relations upon the mortgage. Ib.

between master and servant. – A tug was towing canal [Decided May 22, 1877. Reported below, 5 Hun, 321.)

boats down the Hudson river when a collision took NEGLIGENCE.

place, at night, between one of the canal boats and a Railway company piling material on its own land so tug coming up the river. The canal boat at the time as to obstruct view of approaching train, not.-Plaintiff displayed no light, which was one cause of the colliswas injured by a passing train while crossing a rail. ion. The court left it to the jury to find whether road track at a private crossing. At the time of the or pot, at the time those in charge of the canal boat, accident there was a quantity of stumps and other were under the direction and control of those in charge material which the railroad company had piled on its of the tug towing it, so as to make them the servants of own land, which prevented one coming toward the the owners of the tug. Held, error. The question was track at the crossing from seeing approaching trains. one of law for the court and not of fact for the jury. Held (reversing the decision of the court below), Judgment below reversed. Arctic Fire Ins. Co. v. that it was not negligence for the company to so pile Austin. Opinion by Allen, J. che stumps and material on its own land as to obstruct 2. Respondeat superior : tug and boat towed.-The fact the view of trains, though the existence of such that a steam-tug furuishes the motive power for a caval obstructions might have a bearing upon the question boat and undertakes to tow it “at the risk of the master of the contributory negligence of plaintiff and that of and owner” of the latter, does not relieve the one in the degree of care with which trains approaching the l charge of the canal boat from the obligativu to use

every precaution necessary to guard against the perils court is further of opinion that there is no other of navigation, peither does it constitute the proprie | error in the said decree than as aforesaid. Therefore, tors of the tug common carriers or make them liable it is decreed and ordered that so much of the said defor the negligent acts of those in charge of the canal cree as is above declared to be erroneous, be reversed boat within the doctrine of respondeat superior. Ib. and annulled, and the residue thereof affirmed; and

3. Duty of boat toured to exhibit lights : negligence. that the appellee, R. D. James, pay to the appellants The canal boat which was run into by the upward their costs by them expended in the prosecution of bound tug was the outer boat on the larboard side of their appeal aforesaid here. Aud it is ordered that the front one of three rows of four boats, which were | this cause be remanded to the said chancery court being towed by a bawser astern of the downward for further proceedings to be had therein, in conformbound tug. It did not exhibit the statutory or cus ity with the foregoing opinion and decree, which is tomary lights. Held, negligence on the part of the ordered to be certified to the said Chancery Court of canal boat owners. Ib.

the city of Richmoud." The question was, whether 4. Rights of owner of cargo in case of collision. this judgment was reviewable by the Supreme Court The owner of a cargo transported by one vessel has no of the Uuited States. The court said: action against the owner of another vessel negligeutly. This judgment has been brought to this court by coming into collision and causing injury to the cargo, one of the parties upon a writ of error, and the exif the negligence of those in charge of the vessel carry ecutor now moves to dismiss the writ, because ing the cargo contributed to that injury. (Steamboat the judgment of the Court of Appeals was not Allas v. Phoenix Ins. Co., 15 Alb. L. J. 102, distin the final judgment or decree in the suit. Our guisbed.) Ib.

jurisdiction upon writs of error to State courts is con[Decided May 22, 1877. Reported below, 6 T. & C. 63; fined to the final judgment or decree in a suit in the 3 Hun, 195.)

highest court of the State in which a decision in the SPECIFIC PERFORMANCE.

suit can be had. Rev. Stat. 709. This, we think, Vendee in possession under parol contract for sale of

is not such a judgment. It decides some of the real estate. - The vendor, at the time of the sale of I questions involved in the controversy between the certain real estate, represented that the description in

parties, but the suit itself has been sent back to the the deed included a small piece of land which was not,

Circuit Court for further proceedings, in conformity in fact, included therein. The vendee took possession

to the opinion filed with the record. In short, the of this piece and occupied, but made no permanent

judgment is one of reversal only, which, as we bave improvements. Held, that the case was not within

uniformly held, is not a final judgment in the suit. the statute of frauds; that an action in equity to com

McComb v. Commissioners, 91 U. S. 2; Parcels v. Johnpel a conveyance would lie, and that the plaintiff was

son, 20 Wall. 654; Tracy v. Holcomb, 24 How. 427. Afnot limited to an action for damages for the fraud,

ter the further proceedings which have been ordered (Glass v. Hulbert, 102 Mass. 24, criticised and distiu

in the Circuit Court the suit may be again taken to guished.) Judgment below affirmed. Beardsley v.

the Court of Appeals and another judgment rendered

there. Duntley. Opinion by Miller, J.

The object of the parties is to settle and distribute [Decided May 22, 1877.]

the estate of the testator under the direction of the APPEALS TO FEDERAL SUPREME COURT

court. The plaintiffs in error are only interested in

securing the payment of their legacy. A statement of FROM STATE COURTS.- ONLY FINAL

the accounts of the executor, upon the principles setJUDGMENTS REVIEWABLE.

tled by the Court of Appeals, may produce a fund sufIN Davis v. Crouch, which was recently before the ficient to satisfy them. The only question upon which I United States Supreme Court, the controversy was our jurisdiction can be invoked arises out of the deover an estate left by one Hector Davis, in which the cision as to the liability of the executor to account for Supreme Court of Appeals of Virginia rendered the his investments in Confederate securities. As to this, following judgment:

the present plaintiffs in error, having been non-resi"This day came again the parties by their counsel, dents of the Confederate territory during the war, and the court, having maturely considered the tran occupy a different position from the other parties, and seript of the record of the decree aforesaid, and the until the suit has been finally disposed of in the State arguments of counsel, is of opinion, for reasons stated courts, the fund ascertained, and the results of a dein writing and filed with the record, that the said chan cree ordering distribution known, we cannot tell cery court erred in overruling the appellants' fifteenth whether they will be injuriously affected by the errors exception to the report of Commissioner Evans; in now complained of. They cannot bring the case here stead of doing which, the said court ought to bave re for the benefit of the other parties interested in the committed the said report, as to the matter of the ex estate, except so far as the relief granted to them may ception, to a commissioner of the court, with instruc- indirectly operate to the advantage of the others. It tions to make further inquiry, and report as to the in the end, upon the distribution of the estate under debts of the estate of Hector Davis at the time of his the principles of accounting as now establisbed, they death, by persons residing in the State; whether any shall not be able to obtain payment of the of said debts, and which of them reported as worth them, the case may be again taken to the Court of Apless or doubtful, are now available, or might have been peals upon the future decree of the Circuit Court, and collected or secured by lien upon real estate or other from there here if necessary. Whether their interest wise, or by suits instituted since the death of the teg in the convertible value of the Confederate currency tator, and as to any other matters connected with said invested in Confederate bonds for the purchase of debts which the said commissioner might deem ma- | State stock is sufficient to justify them in doing so will terial, or concerning which either of the parties might be a matter for them to determine after the final derequire him to make inquiry and report; but the cree bas been reudered.

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