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ejecting plaintiff from the train on its passage from Utica to Rome on the morning of September 11, 1881. At the close of the evidence defendant moved for a nonsuit which motion was granted and plaintiff excepted.

Oswald Prentiss Backus, for appellant, cited 80 N.Y. 230; 38 Conn. 557; Garrett v. Railroad Co., 3 R. Cases, 416; Curl v. C. R. I. & P. R. Co., 16 N. W. Rep. 69, 72, 73; Stephen v. Smith, 29 Vt. 160, § 52; 2 R. S. (Banks, 6th ed.) 540.

D. M. K. Johnson, for respondent.

MERWIN, J. Concededly the plaintiff had a ticket from Utica to Rome, that he had purchased the afternoon before. As to what occurred just prior to his ejection, there is a conflict of evidence. On the part of plaintiff, there was evidence tending to show that as the conductor came along and asked the plaintiff for his ticket he tried to find it and could'nt; told the conductor he had one and would find it in a minute; felt through his pockets, said to the conductor, "you go through the train and by the time you come back I will find my ticket, if I don't, I have money to pay my fare;" that the conductor said, "find your ticket or get off the train;" that the plaintiff said, "maybe you better put me off this train; " that then the conductor pulled the bell-rope to stop the train; that before it fully stopped the plaintiff found his ticket and offered it to the conductor who refused to take it and put the plaintiff off.

On the part of the defendant the conductor testified that the plaintiff was in the next to the last car; that as he came along he asked him for his ticket; that the plaintiff found what was apparently a ticket and the occurrence then proceeded as follows: "I asked him for his ticket; he said he would not give it to me until he got to Rome; I said if you don't give me that ticket I will have to put you off; he said I wont give it to you; I said very well, I will have to stop the train and put you off; I then rang up the train, the train stopped at once, then I told him to get out; he got up and walked out down on the ground, then he wanted me to take the ticket and I refused; I told him I had stopped the train to put him off and I wouldn't carry him; I didn't stop that train for any purpose except to have him get off; the rules are, ring up the train and put off a man who don't show his ticket or pay his fare."

The nonsuit was granted apparently upon the theory that as according to the plaintiff's evidence, the ticket was not produced and tendered before the bell was actually rung therefore the conductor was justified in putting the plaintiff off.

The counsel for defendant claims that the omission to produce the ticket was equivalent to a refusal, and brings the case within Hibbard v. N. Y. & E. R. Co., 15 N. Y. 455. In that case the plaintiff had a ticket from Hornellsville to Scio; had shown it to the conductor once, and then, afterward and after the train had passed another station, was asked to show it again and refused and was put off. It was held at Circuit that he was not bound to show it again; but the Court of Appeals held that he was, and that a rule to that effect was reasonable, and reversed the judg


In O'Brien v. N. Y. C. & H. R. R. Co., 80 N. Y. 236, it is said by Rapallo, J., that if in consequence of the fractious refusal of a passenger to pay the full fare the company has a right to demand, the train is stopped for the sole purpose of putting him off, he is not entitled to insist on continuing his trip on paying the fare, but may be removed from the train. If how ever the stoppage is at a station a tender before removal would answer. Guy v. N. Y., O. & W. R. Co.,

30 Hun, 399; Pease v. D. L. & W. R. Co., 16 W. Dig. 266.

In Maples v. N. Y. & N. H. R. Co., 38 Conn. 558, the rule is laid down that a passenger whose ticket is mislaid is entitled to a reasonable time to find it.

In Railroad Co. v. Garrett, 8 Lea (Tenu.), 438, it was held that a passenger who gets upon a train in good faith, in ignorance of the fact that a tax certificate would not pay his fare, having no intention to impose upon the carrier, cannot be treated as a mere trespasser, but on failure or refusal to pay his fare after request and after reasonable opportunity allowed to comply, he may be ejected, but if before eviction another person offer to pay the fare the carrier is bound to receive it and convey the passenger. The offer in that case was after the bell was rung to stop the train. In the present case if the ticket of the plaintiff was mislaid and he in good faith was trying to find it, he was entitled to a reasonable time to enable him to do so, if he could, and if in case of failure to find it after such reasonable opportunity he was willing and ready to pay his fare, the conductor had no right to put him off. Whether or not the plaintiff was allowed such reasonable opportunity to find his ticket or pay his fare was, upon the evidence on the part of the plaintiff, a question of fact to be determined by the jury. If so the nonsuit was improperly granted.

A question is made by the appellant that the removal was not at or near any dwelling house. This is not set up in the complaint, and no point was appar ently made about it at the trial. It does not seem important to consider it here.

The judgment should be reversed and nousuit set aside and new trial granted, costs to abide the event. Hardin, P. J., and Follett, J., concur.



The conveyance by an insolvent mortgagor of substantially all of his unincumbered property, consisting of an ordinary stock of merchandise, with a stipulation for retention of possession, and with reservation of a power of sale for the mortgagor's own benefit, is void on the ground of its "inevitable tendency "to hinder and delay the creditors of the grantor.

Statutes providing for the recording of such instruments are a substitute for possession of the mortgagee, and repel any implication of fraud arising from the mortgagor's retention of possession, at least until the day of default, not unreasonably prolonged.


HE facts are sufficiently stated in the opinion.

SOMERVILLE, J. No subject has perhaps been more discussed in the courts of this country, especially within the past few years, than the mortgage of stocks of merchandise, where the mortgagor is allowed, either expressly or by necessary implication, to retain possession with a reserved power of sale over the mortgaged property. The courts of the several States are in irreconcilable conflict on the question whether the reservation of such a power conclusively vitiates the instru ment for fraud, as matter of law, without regard to any specific intent to defraud, or whether it is a strong badge of fraud, furnishing only presumptive evidence of fraudulent intent as matter of fact for the jury,

*S. C., 3 Alabama L. J. 86.

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and capable of being rebutted by proof to the contrary by one who seeks to uphold the conveyance. The decisions will be found fully collected and reviewed at length by the various text writers who have undertaken to treat of this particular subject. As well observed in Robinson v. Elliott, 22 Wall. 513, these cases 'cannot be reconciled by any process of reasoning, or any principle of law." Jones Chat. Mortg., §§ 379 et seq.; Herman Chat.Mortg., §§ 100 et seq., p. 222; Mortg. of Merchandise (Pierce), §§ 33 et seq. 88 et seq.

The several decisious of this court touching this general subject are cited in Commercial Bank of Selma v. Brewer, 71 Ala. 574, and the rule so far established by them is stated to be that the conveyance by an insolvent mortgagor of substantially all of his unincumbered property, consisting of an ordinary stock of merchandise, with a stipulation for retention of possession, and with reservation of a power of sale for the mortgagor's own benefit, would be void on the ground of its inevitable tendency" to hinder and delay the creditors of the grantor. In this case it was considered not to be material that the fact of the mortgagor's insolvency was unknown to the mortgagee at the time of the execution of the conveyance. It was further added by the court that they might go further possibly, and declare the instrument void on the ground that it reserved a benefit to the grantors. Constantine v Twelves, 29 Ala. 607; Price v. Mazange, 31 id. 701; Wiley v. Knight, 27 id. 336.

In the absence of all registry laws the manual delivery of mortgaged personal property would be essential to the validity of the transaction. But statutes providing for the recording of such instruments are a substitute for possession of the mortgagee, and repel any implication of fraud arising from the mortgagor's retention of possession, at least until the day of default, not unreasonably prolonged. Herm. Chat. Mortg., § 100; Jones Chat. Mortg., § 380; Hopkins v. Scott, 20 Ala. 183. This has been justly said to be a concession to commerce made in obedience to the growing exactions of trade.


The objection urged in the present case is not to any stipulation, express or implied, for the mortgagor's retention of possession merely, but to an implied reservation of a power of sale in the mortgagor for his own use and benefit, and the argument is that this feature of the case operates to stamp the transaction with fraud.

The general principle is well stated by the Supreme Court of the United States in the case of Robinson v. Elliott, 22 Wall. 523, where it is said that "the creditor must take care in making his contract that it does not contain provisions of no advantage to him, but which benefit the debtor, and were designed to do 80, and are injurious to other creditors. The law will not sauction a proceeding of this kind. It will not allow the creditor to make use of his debt for any other purpose than his own indemnity. If he goes beyond this, aud puts into the contract stipulations which have the effect to shield the property of his debtor, so that creditors are delayed in the collection of their debts, a court of equity will not lend its aid to enforce the contract." This principle is as ancient in our jurisprudeuce as Twyne's case, decided nearly three centuries ago, where the doctrine was settled that the retaining of goods in possession by a vendor, with the power of trading with them as his own, rendered the sale fraudulent and void as against creditors. The reason assigned was that "he continued in possession, and used them as his own; and by reason thereof he traded and trafficked with others, and defrauded and deceived them." 3 Coke, 80; S. C., Smith's Lead. Cas. (H. & W.) 33. The coutrolling principle of the case is that the possession of property, with the accompanying power of dominion aud disposition, is an incident of owner

ship, the right to which, in all honesty and justice, should be denied to any one except the absolute owner. The law therefore justly requires that all transfers or assignments of a debtor's property should be made in good faith for the purpose of paying or securing his debts, and "without any intent to lock up the property from creditors for the use of the debtor." Bump Fr. and Conv. (3d ed.) 399.

Our present statute is a strong affirmation of this principle of law, and was designed more effectually perhaps to carry into effect the doctrine of Twyne's case. It declares that "all deeds of gift, all conveyances, transfers and assignments, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person making the same, are void against creditors, existing or subsequent, of such person. Code, 1876, § 2120.


We proceed to apply these principles to the case in hand. The property here mortgaged is a stock of ordinary merchandise, a portion of which is shown to be of a perishable nature. The value of the goods is shown to be between four and six thousand dollars, and the amount of the mortgage debt the sum of three thousand dollars. The mortgagors were insolvent at the time of the execution and delivery of the instrument, although this was not probably known to the mortgagees. The most that can be iuferred is that the financial embarrassment of mortgagors was known. The grantors in the conveyance do not appear to have owned any other property liable to the satisfaction of their debts. No express power is conferred on the mortgagors to sell the goods, but they were left in possession of them, and by implication it was clearly understood from the terms of the mortgage that they were to remain in possession until the day of default, which was ninety days from the date of its execution. "The implication is irresistible," as observed by Bynum, J., in Cheatham v. Hawkins, 76 N. C. 335, 337, "from the very nature of the business that they (the mortgagors) were to continue in selling and trading as before; otherwise why retain possession of goods which would be a dead incumbrance upon their hands without the power of disposition."

It would be an incredible supposition that the mortgagors, under the circumstances attending this case, were expected to refund this borrowed money by closing their doors and locking up their merchandise, thus entirely abandoning their business. Especially is this true in view of the fact that they did not pursue this course, but continued in possession, making sales of the goods as if they were their own, until arrested in this by the levies made by their various attaching creditors. It is a necessary conclusion that a power of sale was implied, and being implied, it was as much a part of the contract as if expressed. Freeman v. Rawson, 5 Ohio St. 1; Stanley v. Bunce, 27 Mo. 269; Herman Chat. Mortg. 235; Gardner v. Johnston, 9 W. Va. 403.

Such a power when vested in a mortgagee and accompanied with possession, obviously confers on him a dominion over the property which is utterly inconsistent with the continued existence of the lieu intended to be created by the mortgage. It is entirely repugnant to and subversive of such lien. The instrument contains within itself, in its very inception, the mechanism of its own sure destruction. The mortgagor remains practically the owner of the property, with the right to sell and appropriate it at pleasure without liability to account to the mortgagee, save at the mere option of the latter, which may never be brought into exercise until some other creditor seeks to call the debtor to account by levying upon the property. Such an instrument is therefore no valid security, but operates in the most effectual manner to shield the property from the attack of other creditors for the joint

benefit of the mortgagor and mortgagee, thus tending inevitably to hinder and delay such creditors. Herman Chat Mortg. 227-236; Mortg. of Merchandise (Pierce), §33 et seq., § 155; Wiley v. Knight, 27 Ala. 336; Com. Bank Selma v. Brewer, 71 id. 574; Jones Chat. Mortg., § 382 et seq.; Lund v. Fletcher, 39 Ark. 325; S. C., 43 Am. Rep. 270; Orton v Orton, 7 Or 478; 33 Am. Rep. 717; Cheatham v. Hawkins, 80 N. C. 161; Robinson v. Elliott, supra; Constantine v. Twelves, 29 Ala. 607.

A mortgage with such a power of sale, by which the mortgage debtor is enabled to sell at his option and appropriate the proceeds of sale to his own use, is, as we have said above, virtually a conveyance "made in trust for the use of the person making the same," within the meaning of the statute, and this feature of itself stamps the transaction with invalidity. Code, 1876, § 2120.


In construing this statute this court said in Reynolds v. Crook, 31 Ala. 634, that it is essential to the validity of every trust conveyance intended as a security that its "whole purpose should be the devotion of the property bona fide to the indemnification of the creditor, and that "if a part of its purpose is that it shall avail or be reserved for the case or favor of the grantor it is void as to creditors." Miller v. Stetson, 32 Ala. 161. The principle is essentially akin to that which pronounces every conveyance void which reserves a power of revocation in the grantor. The power to sell the mortgaged property and appropriate its proceeds does not differ in effect from a reserved power to revoke in whole or in part.

In Riggs v. Murray, 2 Johns. Ch. 565, it was said by Chancellor Kent in a case of this character that the grantors had been "sporting with the property as their own," and the conveyance carried with it a necessary inference of a purpose to hinder, delay or defraud creditors. Such a power of revocation was said to be fatal to the instrument, and to "poison it throughout." It was very long ago held that a reserved power to mort. gage, or to sell as the grantor might deem fit, was tantamount to a power of revocation, and therefore vitiated a conveyance for fraud. Tarback v. Marbury, 2 Vt. 510; Mortg. Mer. (Pierce), § 154 et seq. All cases of this general class come within the evils intended to be reached by Twyne's case, where it was said that "fraud is always apparelled and clad with a trust, and trust is the cover of fraud."

The authorities are numerous in support of these views. The Supreme Court of North Carolina, in discussing the subject in Cheatham v. Hawkins, 76 N. C. 335, say: "The power to sell was the power to destroy, and the sale was the destruction and extinction of the property. If there were other unsecured creditors at the time of this assignment and no other property of the debtor than that conveyed in the mortgage out of which the creditors could make their debts, the fraudulent intent would seem to be irrebuttable. A clear benefit is secured to the debtor, and a clear right is withheld from the creditor beyond what the law permits. An assigument cannot cover up and preserve the property for the debtor's use, or protect it from the remedies and demands of the creditors. There being no evidence to rebut the "presumption of fraud raised by the law," the mortgage was declared by the court to be void for fraud.

In the case of Tennessee National Bank v. Ebbert, 9 Heisk. (Tenn.) 154, a similar mortgage was decided to be void because it afforded such "facilities for fraud " as to stamp it as "wanting in legal good faith on the plain principle," as was said, that every reasonable man is presumed to intend the probable consequences of his own acts. And besides," it was added, "there is clearly a benefit contracted for to the grantors on the face of the deed and a prejudice to the rights of other creditors."

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In Collins v. Myers, 16 Ohio, 547, the court declared that "to hold that such a mortgage was valid would furnish a complete shelter under which a man could carry on trade for his own benefit completely protected against the payment of his debts, and placed wholly beyond the reach of creditors." The property was said not to be "held by the mortgage, but by the will of the debtor, because if the debtor sees proper to dispose of it he has the power under the mortgage. For these reasons such a mortgage on his stock of mer chandise was decided to be "void as against the policy of the law."

In Mississippi such conveyances have been held void, among other reasons, "because of their susceptibility of abuse, by reason of the ease with which they may be employed for wrong purposes, to the injury of the creditors." Joseph v. Levy, 58 Miss. 843.

In more than one case they have been held void on the ground that they throw open a wide door for the easy commission of fraud, and are therefore contracts against public policy. Phelps v. Murray, 2 Tenn. Ch747; Lund v. Fletcher, 39 Ark. 325; S. C., 43 Am. Rep. 270.

A large number of other adjudications on this subject could be cited giving forcible reasons in support of the doctrine that a reservation to the mortgagor of a discretionary power of sale under the mortgage, renders the mortgage fraudulent as against the creditors of the mortgage debtor. When this fact is made to appear, the better view seems to us to be that the convey. ance is void without regart to the existence of any actual intent to defraud. As forcibly observed by a recent author, "With the enactment of statutes granting most liberal exemption of personal property, and the abolishment of laws for the arrest and imprisonment of debtors, a creditor has but a naked claim against the property of his debtor, and it should receive the most effective support, and every rule calculated to prevent a debtor from secreting or covering property should be sustained with courage and energy." Herman Chat. Mortg. 255.

We are not to be understood as intimating in this opinion that a mortgage of merchandise would be rendered conclusively invalid where the mortgagor is in good faith left in possession of the goods, with power to sell for the exclusive use of the mortgagee, holding the proceeds of sale for his benefit. In such cases he may well be deemed the mere agent of the mortga gee acting for him and in his behalf. Mortg. Merch. (Pierce) §§ 46, 49, 53; Conkling v. Shelley, 28 N. Y. 360; Fisk v. Harshaw, 45 Wis. 665; Tickner v. Wiswall, 9 Ala. 305.

Under the influence of these principles, it needs no further argument to show that the mortgage executed by Crumbey Brothers to the Renfro Brothers, on the 25th day of December, 1878, was fraudulent and void as against the appellants and other creditors of the mortgagors; that the chancellor erred in not so hold. ing. The decree dismissing the bill filed by appellants is reversed, and the cause is hereby remanded, that further proceedings may be had in the Chancery Court, in accordance with the views expressed in this opinion.

[See ante p. 328; 32 Am. Rep. 621; 34 id. 265; 31 id. 178, note; 43 id. 270, 596; 39 id. 160; 30 Eng. Rep. 808. -ED.]


NEGOTIABLE INSTRUMENT WHAT NOT— PAYMENT CONDITIONAL.-C. contracted with defendant to furnish and set the brown stone work for a certain house, which was in course of erection by defendant. For the purpose of procuring a credit from plaintiff for the

stone necessary, C. drew an order on defendant requesting him to pay plaintiff or order $650 when the brown stone work was "topped out," $400 when the stoops of the houses were set, and $375 when the work was completed. This order was accepted by defendant, and thereupon plaintiff furnished stone to C., some or all of which was used in the performance of the contract; he so far performed that the first installment became due and was paid to plaintiff by defendant. C. failed to perform the residue of contract, and it was cancelled by him and defendant, the latter finishing the work at his own expense. In an action to recover the other two installments, held, that plaintiff was not entitled to recover, that the order was not a bill of exchange, because it was not absolutely payable. Cook v. Satterlee, 6 Cow. 108; Seacord v. Burling, 5 Denio, 444; Van Wagner v. Terrett, 27 Barb. 181; Prindle v. Caruthers, 15 N. Y. 426. It was payable only upon condition that the work should be done as specified, and might never become payable. It cannot therefore have the force or effect of a bill of exchange. It does not purport upon its face to be founded upon any consideration, and none can be presumed. Hence it was necessary for the plaintiff to prove the consideration upon which it was given, and that brought into the case all the circumstances under which it was given. It could operate only as an assignment to the plaintiff of what should become due to C. from the defendant, or as a contract on the part of the defendant to pay the plaintiff the sums mentioned in the order upon the terms specified. As to the two sums last mentioned in the order, it never operated as an assignment, because C. never earned them, and they never became due. As a contract it never made the defendant liable to pay the two sums, because it is clear that he was not to be liable to pay those sums until C. did the work, and then he was to pay the two sums which would otherwise be payable to C. to the plaintiff. The defendant limited the conditions upon which he would make payments, and those conditions were never performed. Duffield v. Johnston. Opinion by Earl, J. [Decided June 24, 1884.]

AGENCY-UNDISCLOSED PRINCIPAL-LIMITATIONSTRIAL-PARTY ENTITLED TO BENEFIT OF WHAT EVIDENCE DISCLOSES.-When a broker purchases property without disclosing the name of the principal for whom he acts, he becomes liable personally for the purchase-price, and is entitled to collect such price from the principal, and the latter can relieve himself from such liability only by showing payment to the vendor, or a release for a good and valid consideration from the broker. Cobb v. Knapp, 71 N. Y. 348; Seymour v. Minturn, 17 Johns. 170. As affecting such liability, it is immaterial whether the broker disclosed to the vendor the fact that he was acting as agent for some principal or made the purchase ostensibly as principal. The statute of limitations begins to run against a claim by the broker from the time of the purchase, the same as if he had himself been the vendor. Considerant v. Brisbane, 22 N. Y. 389. In the absence of objections to the sufficiency of the complaint it is the duty of the trial court to give the plaintiff the benefit of any cause of action established by the evidence, and upon appeal this court will consider the cause of action disclosed by the evidence, without regard to any objections to the sufficiency of the pleadings, which were not made in the court below. Southwick v. First Nat. Bank, 84 N. Y. 420; Cowing v. Altman, 79 id. 167; McGoldrick v. Willits, 52 N. Y. 612. Knapp v. Simon. Opinion by Ruger, C. J.

[Decided June 10, 1884.]



LIBEL AND SLANDER - The plaintiff, describing himself in his complaint as both physician and coroner, alleged that defendant printed and published in its newspaper the following article: "A Narrow Escape from being Buried Alive. A well-to-do farmer found stiff and cold by the road side. He is supposed to have been frozen to death. A coroner takes charge of the case and impanels a jury. The inquest interrupted by a physician who declares the man to be alive. Animation restored." It appears from the complaint and evidence that the plaintiff was by profession a physician and by office a coroner. In the article complained of he is referred to in the latter capacity only, and nowhere can be found a word or suggestion from which the most astute inquirer could infer that he had any other than that public occupation. As the language used did not relate to his profession in any way, so as to his office of coroner, it exhibits on his part a prompt and efficient performance of its duties, and it is impossible to see how any person reading it could ascribe to the words used a defamatory meaning, or without the innuendo, apply them to the plaintiff in his professional capacity, and there is no evidence that such application was intended. The case of Sanderson v. Caldwell, 45 N. Y. 398, is cited by the respondent, but it is not any authority against this view. There the plaintiff was not only in fact a lawyer engaged in the practice of his profession, but the libel spoke of him as collecting claims of soldiers and sailors against the government-a professional actand it was thought to be a just inference that the injurious words used by the defendant related to him in that character. Here it is quite otherwise. There is nothing to show that the words were so spoken of the plaintiff. They do not charge him with doing any act whatever as a physician, nor were they spoken of him in his business as such. In Oakley v. Farrington, 1 Johns. Cas. 130, the plaintiff was a justice of the peace, and sued the defendant because the latter called him a damned rogue." In Van Tassel v. Capron, 1 Den. 250, the plaintiff was a magistrate also, and sued because the defendant had charged him as one who had combined with others to cheat strangers. In the first the plaintiff was nonsuited, and in the last a demurrer to the complaint was sustained for the reason that the words did not touch the plaintiff in his office. So in the case before us. The plaintiff was not spoken of as a physician; he was not described as acting as such on the occasion in question, and if we assume with the plaintiff's counsel-as I cannot in fact concede-that the language of the defendant could in any connection be deemed actionable, it is not so here. Purdy v. Rochester Printing Co. Opinion by Danforth, J. [Decided June 24, 1884.]


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PATENT-EARLIER PUBLICATION.-A patent is not invalidated by statements in an earlier publication, unless those statements are full and definite enough to inform those skilled in the art how to put in practice the invention now patented. Betts v. Menzies, 10 H. L. Cas. 117; Neilson v. Betts, L. R., 5 H. L. 1; Seymour v. Osborne, 11 Wall. 516, 555; Cawood Patent, 94 U. S. 695, 703, 704; United Nickel Co. v. Anthes, Holmes, 155; Same v. Manhattan Brass Co., 16 Blatch. 68. Cir. Ct., D. Mass., July 25, 1884. Hocd v. Boston Car Spring Co. Opinion by Gray, J.

*Appearing in 21 Federal Reporter.


CARRIER CONNECTING-LOSS BY FIRE NEGLIGENCE.-(1) Several connecting carriers, having entered into certain contract arrangements for continuous transportation on through bills of lading, at settled rates of compensation, providing that each line should be responsible alone for its acts or omissions, do not thereby become liable as partners for the undertakings, representations, or misconduct of the carrier who receives merchandise from a shipper. It was the point directly involved and decided in Insurance Co. v. Railroad Co., 104 U. S. 146. The defendant's obligations were therefore those of an intermediate carrier, arising out of the implied contract springing from receipt of the goods. These bound it for safe carriage over its own line, and for delivery or tender to the next carrier beyond, within reasonable time, Insurance Co. v. Railroad Co., supra; Empire Co. v. Wallace, 18 P. F. S. 302; Myrick v. R. Co.. 107 U. S. 102; S. C., 1 Sup. Ct. R. 425; Railroad Co. v. Manfg. Co., 16 Wall. 318; Am. & Eng. R. Cas. 271. It must not be overlooked that the question here is not (as in Railroad Co. v. Manfg. Co., 16 Wall. 318) whether the defendant remained liable under his obligations as carrier to the date of loss, but whether he was guilty of willful fault, and consequently forfeited the exemptions in the bill of lading, and thus became responsible for the consequences of the fire. That he was not guilty of such fault seems reasonably clear. (2) Where cotton was delivered to a carrier to be transported from Memphis, Tennessee, to Woonsocket, Rhode Island, upon through bills of lading, exempting liability for fire, issued by the receiving carrier in pursuance of such arrangement between the connecting carriers, and the cotton was delayed at Norfolk by reason of a block caused by accumulation of freight on the line intended to convey it therefrom, and was stored in the defendant's warehouses, where it was burned, held, that the company so storing the cotton was not bound to send the cotton forward' by other lines, and was not liable for the loss. The fact that the company had effected an insurance on the cotton is unimportant. Cir. Ct., E. D. Penn., June, 1884. Deming v. Norfolk. Opinion by Butler, J.

States courts for this State in accordance with the
opinion in Martin v. Hausman, supra, and until there
be some authoritative construction of the statute by
the Supreme Court of the United States, or of the
State, I shall follow the rule laid down as above. (2)
Federal courts have authority to take possession of
property so assigned, and dispose of it in accordance
with the provisions of the State statute; and where a
form of procedure is prescribed by the State statute,
which may be pursued by the State courts of general
jurisdiction, it may also be pursued in the correspond-
ing Federal courts. Strong v. Goldman, 8 Biss. 552; 2
Story Eq. Jur., § 1057; Lackland v. Garesche, 56 Mo.
267. (3) It is insisted that the plaintiffs, being only
general creditors, and not having as yet reduced their
claims to judgment, have no standing in a court of
equity to enforce such claims as against these trans-
fers. The opinion in the case of Dahlman v. Jacobs,
supra, sustains this view, but the decision there was
subsequently set aside in the same case. 16 Fed. Rep.
614. True, in this latter opinion nothing is said as to
the specific ground upon which the former was based,
so that opinion was not expressly overruled; but in
view of the decision of the Supreme Court of the
United States in Case v. Beauregard, 101 U. S. 688, I
am constrained to rule against the defendants on this
proposition. In that case it was decided that "when-
ever a creditor has a trust in his favor, or a lien upon
property for the debt due him, he may go into equity
without exhausting his remedy at law." The first
clause of this decision covers this case. The plaintiffs
seek to charge the defendants, holding certain prop-
erty as trustees for them and other creditors. The
gravamen of the suit is the enforcement of a trust.
Strike that out and nothing is left. And in accord-
ance with that decision, it must be held that a general
creditor may, without reducing his claim to judgment,
proceed in equity to charge one holding the property
of his debtor received under such an assignment or
transfer as a trustee for the benefit of creditors. Ins.
Co. v. Transp. Co., 10 Fed. Rep. 596; Same v. Same,
13 id. 516; Batchelder v. Altheimer, 10 Mo. App. 181;
Holt v. Bancroft, 30 Ala. 193; 1 Story Eq. Jur., §§ 546,
547. Cir. Ct., E. D. Mo., July 25, 1884. Clapp v. Ditt-
man. Opinion by Brewer, J.




GENERAL ASSIGNMENT GENERAL CREDITOR CLAIM TO JUDGMENT.-(1) Where a debtor who is in- SHIP AND SHIPPING CHARTER-PARTY BILL OF solvent transfers all his property to a single party, LADING-EMBEZZLEMENT BY MASTER-FRUIT CARGO→ and under such circumstances that it is obvious that GOLD COIN-USAGE OF TRADE.-A vessel was specially there was no intention of merely giving security, and chartered for a lump sum to make a voyage from Balwith the idea of paying the debt and reclaiming the timore to the Bahama islands, the charterers to furproperty, such transfer, no matter by what form of nish "ballast out and a cargo of fruit back." A sum instrument, whether that of a chattel mortgage or in gold coin was given by charterers to the master, otherwise, and whether made to the creditor directly for which he gave a bill of lading, "freight as per or to a trustee, must be treated as a general assign-charter-party. On the voyage out the master left ment, and for the benefit of all creditors. This questhe ship, having embezzled the money. Held, that tion was fully considered by this court in the case of under the charter-party the owners did not contract Martin v. Hausman, 14 Fed. Rep. 160, and after a full for the safe carriage of gold coin, and that the bill of examination of the statutes of Missouri and the de- lading was given without authority. Held further, cisions of its Supreme Court, it was answered in the that the alleged usage in the fruit trade with the affirmative. The opinion in that case was written by Bahamas to send out in the vessel gold coin with which Judge Krekel, and was concurred in by my predeces- to purchase the return cargo was not proved to be such sor, Judge McCrary. That opinion was followed in a usage as would bind a specially chartered vessel as Dahlman v. Jacobs, 15 Fed. Rep. 863, in Kellogg v. carrier of the gold, and that in this case the master Richardson, an unreported case in the Western Dis- received the gold as bailee of the charterers. Dist. Ct., trict, and also, I am informed, in other cases in this D. Maryland, July 5, 1884. Hart v. Leach. Opinion by court, as well as in some of the District Courts of the Morris, J. State. While if this was a new question, I confess my own conclusions would be different, and in harmony with the decisions of National Bank v. Sprague, 20 N. J. Eq. 28: Farwell v. Howard, 26 Iowa, 381; Doremus v. O'Harra, 1 Ohio St. 45; Atkinson v. Tomlinson, id. 241; and other cases cited by counsel for defendants; yet I think there has been such a course of decision in this Circuit as to establish the rule in the United

TAXATION SHARES OF NATIONAL BANK-ACT OF 1883, CH. 345-VALIDATING LEGISLATION.(1) The Legislature of a State cannot validate a tax which is prohibited by the laws of the United States; but it is competent for it to sanction retroactively such pro ceedings in the assessment of a tax as they could have legitimately sanctioned in advance. (2) In the act of 1881, ch. 271, Laws of New York, the fatal vice was the

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