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with respect to goods brought from another Stateis a regulation of inter-State commerce as much as a law imposing a tax upon such goods. Therefore it cannot

Charles D. Wright and Francis Kernan, for plaint

iffs. be said tbat such a statute acts incidentally. It acts directly upou a commerce which is inter-State. It

Levi H. Brown and Beach & Cushing, for detenddoes not, like laws imposing a tax upon gross receipts ant. from traffic, affect such commerce indirectly. It as- WALLACE, J. If the evidence introduced upon the bumes to regulate and control it as commerce and has trial of this case was such tbat it would have been the no other object and desigu. Therefore we cannot say, duty of the court to set aside a verdict in favor of the as was stated in the Peik case, that said section 57, if defendant as contrary to evidence, if such verdict had intended to apply to inter-State commerce, merely in- been rendered by the jury, then it was the duty of the cidentally affected such commerce.

court to direct a verdict for the plaintiffs. Randall v. We bave examined the case of the People v. W., St. B. &0. R. Co., 109 U. S. 478; Griggs v. Houston, 104 L. & P. R. Co., 104 III. 476. That portion of the case id. 553; Herbert v. Butler, 97 id. 319. that is in any way applicable to this is largely based The defendant's motion for a new trial presents the upon the construction given by that court to the three question whether the evidence was such as to require cases cited, and reported in 94 U. 8. Rep. For the the case to be sußmitted to the jury according to the reasons before stated, we think the Supreme Court of rule stated. The plaintiffs sued to recover damages the United States never intended to establish the doc- arising from a breach of warranty on the part of the trine as broadly as contended in the Illinois case. defendant. The plaintiffs were manufacturers and

Thus far we have discussed the question presented sellers of vises at Watertown, N. Y., and the defeud. as though Congress bad remained entirely passive ant was a manufacturer of steel at Cleveland, O. In upon the subject. Such however is not the fact. su August, 1880, the plaintiffs wrote to defendant, stat1866 it passed an act authorizing all railroad companies ing that they required steel for facing the jaws of the to transport passengers and freight from State to vises they were manufacturing, and detailing the State, and empowering them to receive and accept characteristics which steel should possess for that porcompensation therefor. It seems to us that the ex- pose, and requesting defendant to send them a sample istence of this statute must be considered in discus. to test. The defendant sent them a sample. It sing the power of a State to regulate inter-State com- proved unsatisfactory, and plaintiffs wrote defend

See U. S. Stat. at Large, vol. 14, 66; Rev. Stat. ant again, pointing out the defects, asking for another of U. S. (2d ed. 1878), p. 1017, 9 5258.

sample, and stating that they could give considerable Il by this statute Congress undertook to legislate and continuing orders if defendants could furnish a upon inter-State commerce, the exceptional decisions satisfactory article. The defendants sent otber eamof the United States Supreme Court decided in 1876, ples. Subsequently the plaintiffs sent several orders including the Prik case, do not militate in the slight- for lots of steel, accompanied with explanatory sugo est degree against the views announced herein. That restions to defendant, and defendant sent the lots each railroad company in the case before us issued its ordered. The correspondence indicates tbat it was own way-bill to and from the connecting point with contemplated by both parties that plaintiffs should exthe defendant, and that each company was liable for periment with these lots, in order to ascertaiu whether the loss and damage occurring on its own road only, the defendant could supply them with the required does not affect the question of inter-State commerce. article. October 22, 1880, defendant wrote plaintiffs as From the time the goods began to be moved from St. follows: Louis, Mo., until they were delivered at Hutobinson, “We have been trying to get a cast of steel out for in this State, they were the subject of commerce and your work, but are so busy that we can't do any thing commerce among the States, and therefore inter-State in way of experimenting, but will send same as before

if desired. If you desire us to send sane quality as After a careful consideration of the whole record before please reiterate your order." and the important questious involved, we decide that October 25th plaiutiffs replied to this letter as folthe plaintiff is uot entitled to recover.

lows: The judgmeut therefore of the District Court must “Yours of 22d at band. Give us same quality as last be affirmed.

lot, and send as soon as possible, 500 lbs. %x%, 500 lbs. All the justices concurring.

56x1, 500 lbs. 76x148."

November 6th plaintiffs wrote defendant again as

follows: SALE-WARRANTY-DUTY OF PURCHASER. "Send us 500 lbs. steel (same quality), %x1%. We

are in great need of all stock o:dered, and if it proves UNITED STATES CIRCUIT COURT, N. D. NEW YORK.

satisfactory on a fair trial hope to give you much JULY, 26, 1884.

larger orders."

Neither of these orders were filled by defendant, BAGLEY V. CLEVELAND ROLLING MILL CO.*

owing to defendant's ivability to do so, and NovemA manufacturer of steel having in obedience to several

ber 20th defendant wrote plaintiffs explaining the orders from a customer furnished the latter with steel of

causes of the delay. November 22d piaintiffs wrote a certain quality, if upon receipt of a subsequent order defendant, referring to their former orders, and orderfrom the same customer for the same article he supplies ing two more lots of 1,000 pounds each. Soon after an inferior quality, he is liable upon his undertaking that

this all the orders were filled by the defendant, and the steel was of the quality ordered, and such liability after they were filled, and prior to March 5, 1881

, is not lessened by the fact that the customer did not

plaintiffs ordered and defendant sent four or ive lots avail himself of his opportunity to test the steel before

of steel. March 5, 1881, plaintiffs ordered 2,000 pounds, using it.

same quality as last ordered,” which order was Olled If there is a warranty of kind and quality, the purchaser has

by defendant. March 30, 1881, plaintiffs ordered three a right to assume the warranty to be true, and therefore

tons, same quality as last." This order was filled he may sell with like warranty, and defend suits for the

by defendant by a shipment of the quantity, April breach, and recover of the vendor.

30th. *S. C., 21 Fed. Rep. 159.

All the lots sent by the defendant between Novem.


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ber 22, 1880, and this last order, including the steel "through & misunderstanding bere we did not sepd sent upon the order of March 5th, proved satisfactory | the right thing." The defendant then made a second to the plaintiffs, but the steel sent to fill the order of attempt to fill the order, and this after being advised March 30th proved a failure. Its defects were discov- , by plaintiffs' letter of May 13th, what the particular ered before it was used, aud May 13th plaintiff wrote to defects were, and what use the steel was required for, defendant as follows:

and that the steel sent before was satisfactors. There "The steel shipped by you April 30th is a complete was therefore no room for any possible misconception failure. You remember we want it for vise jaws, and or misunderstanding of the description and quality of require it to harden and take a temper when heated the steel which tbe defendant was instructed to send. and plunged in water. What you have sent before The question then is, did the transaction import an has been good and satisfactory in this respect. We undertaking upon the part of the defendant to send have tested some twenty or thirty pieces, and many plaintiffs steel of the quality theretofore seut, and took no temper at all, and some would barden in found to be satisfactory? spots and be soft in other parts. We have tried it Although the term “warranty" is used as expressfaithfully in every way, with no better results. Oring, in a general sense' the nature of the defendant's course we cannot think of using it, as the tempering is undertaking, there was no warranty in the technical the last process almost, after all the work is expended sense of the term. A warranty is an undertaking on the vises. We see no other way than for you to wbich, though part of the contract of sale, is collateral duplicate the order with stock that will be right, and to the express object of it - a buyer has a right to exwe return this lot to you."

pect an article answering the description in the conMay 17th defendant wrote to plaintiffs :

tract; but this is not on the ground of warranty, but “We have investigated the complaint contained in because the seller does not fulfill the contract by give your letter of the 13th against the steel, and find, that ing him something different. Abinger, C. B., in Chanthrough a misunderstanding here, we did not send the ter v. Hopkins, 4 Mees. & W. 399, 404; Martin, B., in right thing. We have entered a new order and will Azemar v. Casella, L. R., 2 C. P. 677, 699. Such an push it as fast as possible. Meanwhile please return undertaking is usually treated as a warranty, because the lot you have to us."

the description of the article is deemed a representaMay 21st plaintiffs wrote defendants, stating that tion that it answers the description. But where there they had shipped the lot for return, and saying: is a collateral representation the rule obtains, that in

We trust you will permit no delay in forwarding order to constitute a warranty, it must have been in-
the duplicate order of proper quality. We are out of tended as such by the veudor, and understood as such
stock, and many of our meu will be idle until it ar. by the vendee.

By assuming to comply with the plaintiffs' order, the May 24th defendant filled the order. The lot was re- defendant undertook to send steel of the same quality ceived by plaintiffs, June 1st, and a large part of it was as that furnished upon their order of March 5th. The used for the vises. After it bad been used and the order of March 30th was the one which defendant as. vises sold, complaints were made by purchasers, and sumed to fill, and called for steel of the same quality upon investigation it was ascertained that the vise as sent in response to the order of March 5th. The jaws made from it were too brittle for practical use. letters and orders of plaintiffs subsequently were but Thereupon tests were made of the unused steel, part reiterations of the original instruction to send steel of of the lot in question on hand, and it was found the same quality as sent upon the order of March 5th. wholly unfit. These tests were made by taking sam- There was nothing for the jury to pass upon, and the ples of the lot and heating them, and plunging them question was one purely of law, whether defendant in water, when by filing and by striking them with a undertook to furnish plaintiffs with steel like that hammer, it was found they had not tempered, but sent pursuant to the former order of March 5th. That were brittle. Thereupon plaintiffs promptly gave no- they did so undertake is perfectly clear. The case, in tice to the defendant, and sent to the defendant sam- its facts, is almost identical with Gurney v. Atlantic & ples of the steel to test. After a long delay defend-G. W. R., 58 N. Y. 358. The rule that the sellise in ant's agent wrote to plaintiffs stating that he was sat- which an affirmation is intended, and whether it was isfied that defendant could not make steel of the kind understood and relied on as a warranty, are questions required for the plaintiff's purposes.

of fact for the jury, bas no application to such a case The damages sustained by plaintiffs in the cost of (Wason v. Rowe, 16 Vt. 525), any more iban to the labor and the waste of material empluyed in the de- case where an article is sold by a particular descripfective vises, together with interest from the com- tion. Hogins v. Plympton, 11 Pick. 100; Winsor v. mencement of the suit, were $3,000.

Lombard, 18 id. 60; Borrekins v. Beran, 3 Rawle, 23; The court ruled , as matter of law, that there was an Richmond Trading Co. v. Farquar, 8 Blackf. 89; Hawagreement on the part of defendant that the steel kins v. Pemberton, 51 N. Y. 204; Dource v. Dou, 64 id. should be of the same quality as the lots that defend- | 411. Wbere a vendor agrees to fill an order sent for ant sent to the plaintiffs between November 22, 1880, an article of a particular quality, bis liability is the and the lot sent upon their order of March 30th; that bame as when the proposition to sell an article of that there was a breach of this agreement; that the plaiuto description comes from him in the first instance; iffs owed no duty to defendant to test the steel before be is liable if the goods sent do not correspond using it; and that there was no evidence to author with the description. Dailey v. Green, 3 Harr. (Pa.) ize the jury to find that the plaintiffs or those in their | 118. employ discovered the steel to be defective before the The evidence was 80 conclusive that there was a vises were finished. If these rulings were correct the breach of the undertaking of the defendant, that the motion for a new trial should be denied.

jury would not have been authorized to draw a conThere was no conflict of testimony respecting the trary inference. If all the steel had been used, warranty. The plaintiffs' letter to defendant of there might bave been a slight question whether or not March 5, 1881, requested the defendant to send steel of some fault or error in working it had not been com"the same quality as last ordered." The defendant mitted by the plaintiffs, although the testimony in sent that lot of steel. March 30th plaintiffs ordered their behalf was clear and uncontradicted that they three tons more, “same quality as last.” The defend- used ordinary care in working it; but the tests made ant undertook to fill that order, but failed for the rea- with the steel which had not been used, the entire abson stated in its letter to plaintiff of May 17th, sence of testimony on the part of the defendant tend

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ing to attribute the result to any other causes than the 1 Camp. 190; Grimuldi v. White, 4 Esp. 5; Milner på defective quality of the article, and defendaut's sub- Tucker, 1 Car. & P. 15; and Spragile v. Blake, supra, sequent implied admission of its defective quality are cited as holding that the remedy of the vendee left the case of the plaintiffs free from any fair does not survive the acceplance of the article, after doubt.

opportunity to ascertain the defect. The English If the plaintiffs had a right to rely upon the under- cases were similar in their facts to Sprague v. Blake, taking of the defendant that the steel was of the qual- cases where the defects were obvious upon inspection ity ordered, the latter certainly has no right to com- of the article accepted. Some of the early English plaju because the plaintiffs acted upon that assump- cases hold that the rule does not obtain where there is tion. If there is a warranty of kind or quality, the an express warranty; but Lord Ellenborough did not purchaser has a right to assume the warranty to be make such a distinction, and applied it to such a case true, and therefore he may sell with a like warranty, in Hopkins v. Appleby, 1 Starkie, 388. Modern text and defend suits for the breach, and recover of the writers of high authority do not adopt the unqualified vendor his special damages in consequence of doing so. proposition that the cause of action does not survive Clare v. Maynard, 7 Car. & P. 741; Cox v. Walker, id. an acceptauce, after kuowledge that the article is not 744; Swett v. Patrick, 12 Me. 9; Ryerson v. Chapmun,66 in compliance with the condition of sale, but state id. 557; Lewis v. Peake, 7 Taunt. 153.

that the silence of the vendee, after acceptance with The testimony undoubtedly shows that up to a kuowledge of the breach of the contract, may be incertain period in the dealings between the parties it terpreted as a waiver of a right to complain, and may was not certain that the defendant could supply afford a presumption that the article was satisfactory. plaintiffs with the desired quality of steel, and that Story Sales, $ 405; Benj. Sales, SS 825, 8:29. plaintiffs were experimenting to ascertain whether the

The law was stated by Comstock, J., in Muller v. article sent would answer the purpose. But after the Eno, 14 N. Y. 597, as follows: plaintiff's had informed defendant that certain lots

“The omission of the purchaser to give notice or to had proved satisfactory, and gave an order for the

make complaint, and the manner in which he deals same quality, the latter had no right to assume that fu

with the goods, may furuish strong presumption ture experiments would be made. After their letter

against him upon the question whether the warranty of November 6th there was nothing on the part of the

is in fact broken, and in regard to the amount of inplaintiffs lo indicate their intention to make experi- jury he has sustained. But this is a very different meutal tests. It is true that by their letter of May 16th

thing from saying that the law absolutely deprives him the plaintiffs notitied defendant that they had found

of relief." the lot shipped pursuant to their order of March 30th

Undoubtedly acceptance after knowledge precludes unfit before using it, but the defendant was aware that

the vendee from exercising the right to rescind the this was not owing to any inberent difficulties in the article, but to its own fault in not sending the kind

sale, and the cases of Day v. Pool and Park v. Morris sent before, and by acknowledging its mistake plainly

Ax and Tool Co. place the rule upou its correct foun

dation in this respect. intimated to plaintiffs that it could supply the required article.

Manifestly there is no distinction in principle, as to It is held in several cases by the courts of New

the rights and remedies of a purcbaser, between a York that upon au executory contract for the sale and

cause of action arising out of a breach of coutract by delivery of personal property the remedy of the vep

the vendor to deliver an article of a specified quality or dee to recover damages, on the ground that the article

description, or out of the breach of a representation furpished does not correspond with the contract, does

which is collateral to the contract, or out of such a not survive the acceptance of the article by the vendee

breach when the representation or warranty is im. after opportunity to ascertain the defect. Hargous v.

plied instead of being express. In either case there is Stone, 5 N.Y. 73; Reed v. Randall, 29 id. 358; Dutchess an agreement, in substance and purport, to the game Co. v. Harding, 49 id. 321.

effect; in either a breach of it works the same injury The later cases in the same courts establish quite de

to the vendee; and in either the same presumption of cided modifications of the doctrine.

fact arises from an acceptance of the article after disIn Gaylord Manufacturing Co. v. Allen, 53 N. Y.

covery of its defects. Whether the cause of action is 519, the court say:

for a breach of a contract or for the breach of a war“ It is not intended to express an opinion as to the

ranty is a mere matter of nomenclature (Hastings F. rule in case there were latent defects, or those which

Lovering, 2 Pick. 214; and the breach of a promise im• could not be discovered at the time of the delivery or

plied by the law works the same consequences, imthe acceptance of the article." Allen, J.

poses the same obligations, and creates the same In Gurney v. Atlantic & G. W. R. Co., supra, it is

rights, as the breach of an express promise. The held not to apply when the defects cannot be ascer

language of the court in Woolcott v. Mount, 36 N. J. tained by examination, upon receipt of the article, but L. 262, is apposite, and is accepted as a sensible and only upon use.

satisfactory exposition of the law, and is as follows: In Day v. Pool, 52 N. Y. 416; S. C., 11 Am. Rep. 719; “The obligation rests upon the contract. Substanand Purks v. Morris Ax and Tool Co., 54 N. Y. 587, the tially the description is waranted. It will comport court held that where there is an express warranty with sound legal principles to treat such engagements upon an executory contract of sale, the vendee is not as conditions in order to afford the purchaser a more bound to return, or offer to return the article; but enlarged remedy by rescissiou than be would bare on after acceptance, and after the discovery of its a simple warranty; but when bis situation bas been defects, may retain it and recover upon the war- changed, and the remedy by repudiation bas become ranty.

impossible, no reason supported by authority can be In the cases of Hargous v. Stone, and Reed v. Ran- adduced why he should not ha

upon his contract dall the defects in the article accepted by the vendee such redress as is practicable under the circumstair were obvious upon inspection, and if the rule is con- ces. In that situation of affairs the only available fiued to such cases, it is supported by some of the ear- means of redress is by an actior for damages, lier English decisions, and by Sprague v. Blake, 20 Whether the action shall be technically considered Wend. 61. The question is not much considered in an action on

a warranty, or an action for the Hargous v. Stone, but iu Reed v. Randall the authori. non-performauce of a contract, is eutirely immateties are considered, and the cases of Fisher v. Samuda, rial."

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The defective quality of the steel received by the ages for personal injuries alleged to have been caused
plaintiffs was not obvious upon inspection, and as the by defendant's negligence, the evidence of experts as
fault was a latent one, their acceptance and use of it to future consequences which are expected to follow
is not material, either upon the theory that their cause the injury is competent. To authorize such evidence
of action did not survive the acceptance, or that their however the apprehended consequences must be such
conduct starts the presumption that it was a satisfac. as in the ordinary course of nature are reasonably cer-
try article. Undoubtedly the plaintiffs could have taiu to ensue; consequences which are contingent,
discovered the latent defects in the steel here if they speculative or merely possible are not proper to be con-
had made a thorough test by heating and plunging it. sidered in estimating the damages, and may not be

The question however is not what they could have proved. Curtis v. Syracuse & Rochester R. R. CO., 18
discovered, but what they did discover, and upon that N. Y. 541; Filer v. N. Y. C. & H. R. ('0., 49 id. 45.
question the testimony is decisive. Acting upon the Clark v. Brown, 18 Wend. 229; Lincoln v. Saratoga R.
assumption that the defendant had sent them the ar- Co., 23 id. 4:25, 435. Strohm v. New York, L. E., etc.,
ticle ordered, there was probably a relaxation of their R. Co. Opinion by Rapallo, J.
usual vigilance in testing its quality, but not a scin- [Decided June 17, 1884.]
tilla of evidence to show or raise the inference that

they were aware of its defects until after it had been
used, and the vises in which it had been used had been

-FEE OR EASEMENT. -A statute authorizing the taking sold in the market.

of private property against the owner's consent must The damages sustained by the plaintiff's were such

be strictly construed; and while the property and the

estate to be taken, whether an easement or a fee, and as it was reasonably to be anticipated by the parties would accrue, in view of the special use to which the

the purpose to which it is to be applied, may be desigplaintiffs were to apply the steel if it proved to be unfit

nated in the statute, it must be by unequivocal words. for the purpose. They ensued as the natural and or

The act providing for a supply of water in the village dinary consequence of the use of the steel in the man

of Amsterdam (ch.101,L.1881, as amended by ch. 197, L. ner contemplated by both parties. Upon the author

of 1882) authorizes and requires the taking of a fee in ity of many analogous cases the plaintiffs were entitled

the lands required for the purposes of the act. As the to recover to the whole extent of their actual loss.

commissioners in this case might purchase, so no doubt Hadley y. Baxendale, 9 Exch. 341; Smeed v. Foord, 102

theLegislature might empower them to take by eminent E. C. L. 612; Passinger y. Thorburn, 34 N. Y. 634; Flick

domain, a right to enjoy a privilege in or out of the v. Wetherbee, 20 Wis. 392; Van Wyck v. Allen, 69 N.

owner's estate which would not give them a right to Y. 62; S. (., 25 Am. Rep. 136; White v. Miller, 71 N.Y.

enjoy the estate itself by exclusive or permanent occu118; S. C., 27 Am. Rep. 13.

pation. Such a right, however acquired, would be an It is undeniably true that when a party who is en

easement, and as no grant is pretended, the question betitled to the benefit of a contract can save bimself

fore us concerns the proper construction of the statute from a serious loss arising from a breach of it by rea

(Brooklyn Park Com’rs v. Armstrong, 45 N. Y. 234), sonable exertions, he will not be permitted to charge

and the petition upon which the commissioners have the delinqueut with damages which arise in conse

undertaken to proceed. The act itself, inasmuch as it quence of his own inactivity. Warren v. Stoddart,

authorizes the taking of private property against the 105 U. S. 229. Good faith and good logic require that

owner's consent, is to be strictly construed (Sweet v. he be confined to a recovery of those damages only

Buffalo, N. Y. & Phila. Ry. Co., 79 N. Y. 293; Adams that arise from the default of the other party. If the

v. S. & W. R. Co., 10 id. 328), and while the property plaintiffs here had had any just reason to suppose that

and the estate which is to be taken, whether an the steel they were about to use was unfit for the pur

easement or fee, and the purpose to which is is to be pose, they would not be permitted to shut their eyes

applied may be designated in the statute (People v. to the probable consequences, and when they proved

Smith. 21 N. Y. 595; Sweet v. Buffalo Ry. Co., suprii; disastrous to fall back upon the defendant for indem

Brooklyn Park Com’rs v. Armstrong, supra), it must nity. But they are not to be deprived of compensa

be by unequivocal words, and in pursuing it, all pretion to the extent of their loss upon the theory that

scribed requirements must be strictly observed. Matthey owed any active duty of investigation and ex

ter of N. Y. C. & II. R. R. Co., supra; Matter of Ap

plication of City of Buffalo, 78 N. Y. 362; Matter of periment to the defendant. They had a right to as

Com’rs of Wash. Park, 52 id. 131. The owner may, if sume that the steel sent them was what the defeudant undertook to send them, and no implication of negli.

the Legislature so declares, be dirested of the fee, al

though the public use is special, and not of necessity gence on their part can be indulged, in the absence of testimony to indicate that its unfitness was observed

perpetual. Sweet v. Buffalo R. Co., supra. On the before it was used. None was vffered, and the case

other hand, the entire estate need not be taken, but rested on the uncontradicted testimony of the em

only that interest which is necessary to accomplish the ployees of the plaintiffs, all of whom testified that no

prescribed purpose. 72 N. Y. 330.

See also People v. defects were noticed during the process of using the

Haines, 49 N. Y. 587; Matter of N.Y., etc., R. Co., 770 steel.

id. 191. Matter of Water Com'rs of Amsterdam. OpinUpon the whole case the conclusion is reached un.

ion by Danforth, J. hesitatingly that the defendant cannot fairly com

[Decided June 24, 1884.] plain of the rulings at the trial, There were no dis- INSURANCE-POLICY-HOLDER-NO SET-OFF AGAINST puted facts, and no disputable ivferences from the RECEIVER.–At the time of the appointment of plaintfacts shown upon which a verdict for the defendant, iff as receiver of the A. M. L. Insurance Co., that comor a recovery of a less amount of damages, would have pany held certain claims against A.; and A. held two been warranted; and it would bave been the duty of endowment policies not yet due issued by that comthe court to set aside such a verdict if it had been pany, by the terms of each of which it agreed to pay found by the jury.

the sum insured to his wife in case of his death prior The motion for a new trial is denied.

to the date specified; if he was living at that date, to pay the sum to him. In an action upon suid claims,

held, that A. was not entitled to set off the reserve NEW YORK COURT OF APPEALS ABSTRACT.

value of the policies. It is true that they had a reserve DAMAGES-FUTURE CONSEQUENCES—EVIDENCE

value at the time when plaintiff was appointed reEXPERTS COMPETENT. - In an action to recover dam. ceiver, and for that value they were entitled to their


pro rata share from the assets of the company. But to 245. Cir. Ct., 8. D. N. Y., July 31, 1884. Estes v. Wilwhom was that value payable? It did not all belong liams. Opinion by Wheeler, J. to A. at that time, neither did it belong to his wife. It

REMOVAL OF CAUSE-FORMAL COMPLAINANT-SEPAcould vot then be known to whom it would ultimately

RATE CONTROVERSY.-(1) When a party complainaut be payable. Neither one could at that time demand

to a bill in chancery has been made so, not with a view payment of that value or receipt for or discharge it. Either one could claim that the money should be paid

to obtain any decree in his favor, but solely for the into court, and invested under its direction to await purpose of securing the rights of other individual comthe event upon which it would be determined to whom plainants, his being a resident of a State other than it was payable. Under such circumstances it is impos-moval. Hawes v. Oakland, 104 U. S. 450; Hazard F.

that in which the defendant resides is no cause for resible to say tbat at the time of the appointment of the

Durant, 11 R. I. 195; Mason v. Harris, 11 Ch. Div. 97; plaintiff as receiver the money was due to A. in such a sense that he could avail himself of it as an off-set. It 457; Ayers v. Chicago, 101 id. 184. (2) Whether there

27 Eng. Rep. 368; Myer v. Construction Co., 100 V. 8. is true that one policy by its terms matured on the 7th of December, 1880, so that at the time this action was

is a separate controversy warranting a removal to the commenced the defendant was solely interested in

United States Circuit Court must be determined by that policy, and was solely entitled to the reserve value

the state of the pleadings and record of the case at the thereof. But that value was not due at the time the allegations of that petition. Cir. Ct., D. R. I., Aug.

time of filing the petition for removal, and not by the plaintiff was appoiuted receiver, and hence is not avail

4, 1884. Hazard v. Robinson. Opinion by Gray, J. able as an off-set. Myers v. Davis, 22 N. Y. 489; Martin v. Kunzmuller, 37 id. 396. Newcomb V. Albany. CONSTITUTIONAL LAW-“SPECIAL OR LOCAL"-TAXOpinion by Earl, J.


CORPORATION.-An act which provides for the taxaCORPORATION-MANUFACTURING--PENALTY-ACT OF tion of mortgages on land in no more than one county, 1848--ACTION DOES NOT SURVIVE.-An action against a there being mortgages on land in more than one trustee of a corporation organized under the General county, is void for want of the uniformity required by Manufacturing Act of 1848, ch. 40, to recover the pen.

section 1 of article 9 of the Constitution of the State, alty imposed by section 12 thereof, because of failure and also because it is contrary to section 23 of article to make and file an annual report, is one ex delicto, but 4 of said Constitution, which forbids special legislation is not in any respect based upon the theory of afford- on that subject. It is not necessary to add to what ing compensation to the injured party for damages sus- was said on this subject in the former opinion, as the tained by reason of the omission complained of. This brief only refers to Allen v. Hirscb, 8 Oreg. 412, which court held in the case of Merchants' Bauk v. Bliss, 35 I regard as overruled by Manning v. Klippel, 9 id. N. Y. 412, that an action brought against a trustee of 367, so far as it decides that a public statute cannot be a corporation to recover the liability imposed by seo- a “special or local” one within the meaning of section tion 12 of chapter 40 of the Laws of 1848, was governed 23 of article 4 of the Constitution of the State. A by the statutory limitations applicable to actions to special” act relates to a part, and not the whole-as recover penalties. Since that decision the subject of one-county mortgages, and not all mortgages; and actions under that section of the statute has frequently whether it is also considered a "public" or "private" been under the consideration of this court with the one, is altogether immaterial and irrelevant. Under uniform conclusion that the actions therein provided

the Constitution of this State all statutes are "publio" for are peual in character, and are not in any respect ones unless otherwise declared in the body of the act. based upon the theory of affording compensation to

Art. 9, $ 27, Oreg. Const. If an act is not a "special" the injured party for damages sustained by reason of one because it is also a "public" one; that is, an act the omission complained of. Wiles v. Suydam, 64 N. of which courts take judicial notice, then every proY. 173; Easterly v. Barber, 65 id. 252; Knox v. Bald.

hibitiou contained in the Constitution agaiust special win, 80 id. 610; Veeder v. Baker, 83 id. 156; Pier v. legislation may be violated with impunity. Accord. George, 86 id. 613. The logical effect of these decisions ing to this idea, if the law is "public" it is not special. is to classify such actions among those usually desig. But the Constitution makes it public, however special nated as actions ex delicto, and which at common law in its nature or operation, unless the Legislature othwere extinguished by the death of the tort feasor. erwise declare. So as there can be no special law acSuch a cause of action therefore is not within the pro- cording to this theory, unless the Legislature declares visions of the statute authorizing the survivorship of it private, it is not likely that when it undertakes to certain actions for tort (2 R. S. 448, $1), as it is not for pass an act upon subjects forbidden to special legisla

wrongs done to the property rights and interests of tion it will take the trouble to declare it private, another," and upon the death of the trustee the action and thus subject it to the risk of being declared uncannot be revived against his personal representatives. constitutional. But undoubtedly under the ConstituStokes v. Stickney. Opinion by Ruger, C. J.

tion of the State an act may be both "public" and [Decided June 17, 1884.]

“special or local," and the presence of one of these qualities in no way implies or excludes the other. An

act cannot be both “public” and “private," but it can UNITED STATES CIRCUIT COURT AB- be either and be special. The act of 1882, Session Laws, STRACT.*

64, is the first and only act providing for the taxation of mortgages as things or property; but prior to that

time a solvent debt, whether secured by mortgage or COPYRIGHT-FOREIGN PUBLISHER-AMERICAN AS

not, was taxable as personal property. When an act SIGNEE--USE OF A NAME-RIGHT OF ACTION.-The pub

contains an unconstitutional provision which renders lisher of "

Chatterbox,” in England, having assigned it void, and the act cau stand and be executed without the exclusive right to use and protect that name in

it, according to the general purpose of the Legislature, this country, the assigneo may maintain his action

such clause may be stricken out by the court, and the against any other person who undertakes to publish

act considered as if it bad never been inserted; but books under that name in the United States. Jollie v.

not otherwise. For the purpose of jurisdiction in the Jaques, 1 Blatchf. 618; McLean v. Fleming, 96 U. S.

national courts, the members or stockholders of a cor. *Appearing in 21 Federal Reporter.

poration are conclusively presumed to be citizens of

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