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to our judgment": (2 Q. B. at p. 418.) This decision vidual partner, and he laid it down that the presumpis in no way shaken by that in Nicholson y. Ricketts, 2 tion was that it was made on the faith and credit of E. & E. 497, where two firms with distinct trade names the business, saying, “If a retail merchant gets a note agreed to carry on joint exchange operations under such discounted, is it not to be presumed to be in the regucircumstances as to make them partners in them; and lar prosecution of his business?" and adding, “Tho it was held that the siguature to bills of one of the two difficulty arises from tho name of the individual and firms drawn in course of the exchange operations did the name of the firm being the same. That is the not make both firms liable as drawers; for the decision presumption, liable, however, to be rebutted, if the proceeded simply on the ground that by the arrange- jury believe from tho evidence that was not the state ments between the two firms the names of the two of the fact." A motion to the Supreme Court of firms were to be used separately, the paper to be dealt Pennsylvania, founded, amongst other things, upon in being drawn by one firm and accepted by the other, the alleged error of this direction, was refused. This and as Cockburn, C. J., said, at p. 523, it did not ap- case was decided in 1827. The case before Story, J., pear that the drawing firm had any authority, express was in 18:28. In 1845 tho question under consideration or implied, to bind the defendant by drawing bills. again arose in the Supremo Court of New York in tho The case of Re Adansonia Fibre Co.; Miles' Claim, L. case of Bank of Rochester v. Monteith, 1 Den. 402, Rep., 9 Ch. 635, was substantially the same as that of where the name of Wm. Monteith, an agent of tho Nicholson v. Ricketts, and was decided upon the same firm, had been used as the firm name, and the court considerations. In each of these cases the court came said: “If Wm. Monteith had also been in business on to the conclusion, as a matter of fact upon all the cir- his own account, then the acceptance by writing his cumstances before it, that the name on the bill was name on the face of the bills would have been an not intended to be, and was not, the name of the part- equivocal act, and it would have been necessary to nership sought to be made liable upon it. Upon this show that he accepted on account of the partnership, view of the English authorities, they appear to sup- and not in his own private business," and after citing port the view that where a name is common to a firm among tho authorities for this proposition the United and to an individual member of such firm, and the Slates Bank v. Binney, thus indicating that they must individual member carries on no business separate have thought that in this case thero was a separate from that of the firm, there is a presumption that a business carried on by tho individual whose name was bill of exchange drawn, accepted, or iudorsed in the used, the court added: “But there was no evidenco common name is a bill drawn, accepted, or indorsed that Wm. Monteith was engaged in any other business for the partnership, and for which the partnership is than the affairs of this partnership. We must then liable, and that it lies upon the defendants in an action regard those bills as drawn and accepted by the houso against the partners upon such bill to get rid of the doing business in the name of Wm. Monteith." In prima facie case made against them. But as the court 1853 was decided, also in the Supreme Court of New below relies much upon the American authorities as York, the case of Oliphant v. Mathews, which is the uniformly negativing this view, and those authorities second of the two cases cited in the judgment of the have been much discussed in the argument before this court below. That case, when critically examined, court, we think it desirable to refer to them. The will be found not to be inconsistent with the cases of authorities specially cited in the judgment of the Mifflin v. Smith and Bank of Rochester v. Monteith. It court below are Parsons on Bills of Exchange, 531; is true that the court laid down in general terms that Story on Partnership, 106, 142; the docision in the where a partnership is carried on in the name of an Supreme Court of New York of Oliphant v. Mathews, individual, and a suit is brought against the partners 16 Barb. 608 and the direction of Story, J., to the upon a note or other obligation signed by such indijury in United States Bunk v. Binney, 5 Mason, 176, vidual, tho legal presumption is that it is the note of 183. The passage referred to in Parsons does not bear the individual and not of the partners. The court out the proposition for which it is cited. He says: immediately qualified the generality of the proposition "The burden of proof is upon the plaintiff to show laid down by saying that the presumption might be that the paper was given in the business, and for the repelled and overcomo (in other words the onus of use of the firm, for it will be intended prima facie to proof might be shifted) by proof as to the business in have been given in the separate business of the partner which such person was engaged; and while citing signing it, and to be binding on him alone, at least if Mimin v. Smith as explaining what proof would be he is also engaged in busivess on his own separate ac- sufficient, the court pointed out that in the case becount." The views of Story, J., are best taken from fore them it was proved that the individual did busihis ruling in United States Bank v. Binney, where, ness and borrowed money on his own account, as well in directing the jury, he used this language: “In tho as on account of the partnership; and it was not present case the signature of John Winship may be on shown that one was not as constant and regular as the his own individual account, as his personal contract, other. This case, therefore, is in no way inconsistent or it may be on account of the partnership. Upon the with the previous case decided in the same court of face of the paper it stands indifferent. The burden of Bank of Rochester v. Monteith, and none of the other proof is upon the plaintiffs to establish that it is a con- cases cited in the argument before us carries the doctract of the firm, and ought to bind them.” But there trine of presumption in favor of the defendant further. was evidence to go to the jury in that case that the It appears to us, therefore, that the American authoripartnership was limited to a soap and candle business, ties are in accord with the English upon the point and that the accommodation notes which were sued on under consideration, and that both fail to support tho were given in respect of consiguments of meat, which view taken by the court below, and are in favor of tho might have constituted, and it was contended, did second contention urged in this case on behalf of tho constitute the separate business of Winship. It is plaintiffs. Applying then the presumption for which doubtful therefore whether Story, J., intended his the plaintiffs contend to the circumstances of tho proposition to extend to a case where no separate busi- present case, the matter stands thus: The only business could even be suggested as existing. On the other ness carried on in the year 1878 in the name of and by hand, in the case of Mifflin v. Smith, 17 Serg. & Rawle, Wm. Beatson was the business of the partnership, and 165, Rogers, J., dealt with the doctrine of presumption both the bills sued upon have the appearance of trade in a case where the question was whether the loan of bills. Prima facie, then, the bills were bills indorsed money obtained by a member of a partnership carried and accepted respectively in the name and on account on in his individual name was obtained on the faith of of the partnership, and if that prima facie case were the partnership business, or on the credit of the indi- I not displaced, Mycock would be liable upon them to the plaiutiffs as bona fide holders for value without menced, the accommodation trausactions of Beatson notice, even though they were so indorsed and accepted were treated as not forming any part of the transacfor the private purposes of Beatson, and in fraud of tions of his business, and were excluded from the his partner. The nature of the partnership business ledger. In the third place, the evidence establishes was such as to give Beatson in respect to persons deal- that the accommodation transactions of Beatson after ing with him in business an implied authority to bind the commencement of the partnership diminished his partnership by bills of exchange, and his partner, rather than added any thing, even temporarily, to the although a secret one, must be held responsible upon capital of the firm; and lastly, Beatson himself, called any bill signed by Beatson in the name of the firm in as a witness by the plaintiffs themselves, disproved, as favor of a holder whose title cannot be impeached, it appears to us, the fact that in siguing the bills in however mucb Beatsou in signing that name may have question he signed for the partnership. He stated exceeded the authority and broken the trust reposed that he thought he was not inaking Mycock liable for in him by the agreement of partnership. As was said any of the accommodation bills, whether renewals or by the court in giving judgmeut in the case of Wintle otherwise, and that he considered them private transv. Crowther, 1 C. & J. 316: “Where a partnership name actions, and did not enter them in the partnership is pledged, the partnership, of whomsoever it may books. Can any other inference be reasonably drawn cousist, and whether the partners are named or not, from such evidence than that Beatson, in signing the and whether they are known or secret partners, will bills, intended to sign and did sign them for himself? be bound, unless the title of the person who seeks to We think that no other iuference ought to be drawn, charge them can be impeached," and the authorities and that the jury, in finding that “William Beatson" generally, both English and American, are uniform in upon each of the bills was intended to denote the support of this view. There is no difference in this firm, gave a verdict against the evidence, and one respect between the dormant and the ostensible part- which ought not to stand. The reason given in wer, and when once it is established that a name com- support of their finding by the jury that one mon to a firm and an individual member of it has been bill was addressed to the drawee or drawees as of put to a bill as the name of the firm, there is no differ- the Chemical Works, Rotherham, and that the other ence between the liability of partners carrying on was so connected with it as to stand or fall with it, business in such a name and the liability of partners might have been a good reason in a case where the evicarrying on business in a name which bears in itself dence was in other respects doubtful, but it is in the the stamp and evidence of a partnership. It may present case met to somo extent by the very form of perhaps be argued that in the latter case the bona fide the bill itself, which, while addressed to the drawee or holder without notice is induced by the name itself to drawees at the partnership works, contains in the term trust a firm, and is therefore entitled to have all the “Mr." prefixed to the name “ Wm. Beatson" an indiresponsibility of all the members of that firm, while cation that the individual and not the firm was inan individual name would suggest no responsibility tended, and is entirely outweighed by the clear eviother than that of the individual whose name it is; dence to which we have referred, and we understand but when it is remembered that firm names are often that the learned judge who tried the case was himself used by individual traders, while individual names are dissatisfied with the finding. The additional finding often used by firms, the argument practically comes to that the bank took the bills as the bills of the chemical nothing, and a common principle applicable to both works is clearly irrelevant if the former findiug is cases remains alone consistent with mercantile cxpedi- wrong, for if the bills were in fact signed not in the eucy and general law. But assuming that there is no name of the partnership, but of Wm. Beatson indidifference, as matter of law, between the two cases, vidually and for his private purposes, the fact that the there is as matter of evidence a very real and very plaintiffs were unaware that Mycock was a partner practical difference. A name in itself indicating a with Beatson, and never advanced any money on the firm does not, except in rare instances, of which the faith of his credit, but did at the same time gire case of Stephens v. Reynolds, 5 H. & N. 513, is an ex- credit to the name of Beatson as being the name of ample, leave open any doubt as to the meaning of a the owner of the chemical works, can give them no signature in such name; but a name which in itself more right against Mycock than if he had been a mortindicates au individual is, notwithstauding the effect gagee of the works instead of a partner in them. The of any legal presumption, ambiguous, and there are law in a case of bankruptcy asserts a title in the genelikely to be few, if any, cases where the decision of ral body of creditors of a baukrupt to property of the jury or of a court will be rested upon the presump- which he may have been at the time of his baukruptcy tion alone. The present case is no exception to the in apparent possession with the consent of the true rule, and the presumption in favor of the plaintiffs owner, and upon the faith of which he gained a false arising from the fact that Beatson carried on no busi- credit. But in actions founded upon purely personal ness separate from that of the partnership really sinks contracts, the law does not use the mere moral right into comparative insiguificance by the side of the addi- which a creditor may attempt to assert against a pertional facts which are proved in the case. Upon those son in consequence of his having intrusted to another facts we have to decide, as the courts in Nicholson v. property in the belief of his ownership, of which the Ricketts and Re Adansonia Fibre Co., Miles' Claim, creditor may have contracted with him. In other were called upon to decide, whether the signature to words, in a case like the present there is no conduct the bills upon which the dispute arises was intended on the part of the dormant partner which makes it to denote and did denoto the partnership of which the inequitable on his part to deny, or estops him from defendant was a member. Iu the first place it is clear denying, his liability upon a contract to which he was that the bills were bills, which, if signed by Beatson in fact no party, from which he has derived no benefit, for the partnership, were so sigued by him without the and in respect of which he was not held out to the perauthority and in fraud of his partner, and in respect of son suing him as liable. As regards this point, nothing which no action would have lain against Mycock, if turns on the subject-matter of the action being negothey had remained in the hands of Josiah Carr & Son, tiable instruments. Beatson, by giving the use of his who took them with notice. In the second place, it is, name to a partnership of wbich he was a member, and we think, equally clear that as between Beatson and the only ostensible member, aid uot preclude himself Mycock the bills were uot treated as having been from making contracts binding himself alone, and in signed by Beatson on the partnership account. They any contracts de fucto made by him, whether by parol were not entered in any partnership book, and indeed, or in writing, the question, the answer to which would even before the partnership as well as after it com- determine Mycock’s liability or freedom from liability, would not be whether the other contracting party to show comity to that extent. The case of Cammel trusted Beatson because he supposed him to be sole v. Sewell, 5 H. & N. 728, was concerning property sold owner of the chemical works, but whether Beatson, in Norway, which had not been in England until after whom alone he knew and actually trusted, was acting that sale and had never been in possession of the Engas agent for the partnership, or in his individual lish owners. See, as sustaining the case at bar, Greencapacity for himself. This kind of question was raised wood v. Curtis, 6 Mass. 358; Taylor v. Boardman, 25 in the case of the Bank of Scotland v. Watson, 1 Dow. Vt. 581; Martin v. Hill, 12 Barb. 631; French v. Hall, 40, where the bank and its agents carried on separate 9 N. H. 137; Langworthy v. Little, 12 Cush. 109. Such banking business at the same office, and the bank was cases as Grant v. McLachlin, 4 Johns. 34, and The unsuccessfully sued by a person who relied in support Helena, 4 Rob. Ad. 3, do not conflict. In them there of his claim against the bank upou a receipt which were, in the foreign country, legal proceedings in rem, bore the address of the common office. One point or analogous thereto, so that the question was as to only remains for decision. The verdict and judgment respect for the judicial proceedings of another country. for the plaintiffs have been properly set aside by the Order of General Term reversed and judgment on court below, but is it right that the judgment entered report of referee ordered. Edgerly, appellant, v. Bush. instead for the defendant Mycock should stand? We Opinion by Folger, C. J. have entertained some doubt whether the case ought [Decided June 1, 1880.] not to go to auother jury to be decided upon the principles laid down in this judgment; but we have come
- TRIAL-CHARGES AS TO WEIGHT to the conclusion that the court ought not to put the
OF EVIDENCE - ERROR. — Upon the trial of an indictparties to this expense. The case is one in which no
ment for murder, in wbich a verdict of manslaughter additional facts remain to be proved, and in which in the third degree was rendered, the judge, instead upon the facts proved no jury would be justified in
of informing the jury what must be established to finding a verdict adverse to the defendant Mycock. It make out thc offeuse, and leaving it for them to deteris one therefore in which, to use the words of rule 10 mine whether it had or had not been done, said: of order XL. of the General Rules of the Supreme “Enough has been proveu if you believe the witnesses Court, we have before us, as the court below had, all
on tho part of the people." Held, error. The attenthe materials necessary for finally determining the
tion of the jury was thus directed to evidence of inquestion in dispute; and in this state of circumstances culpation merely, its weight was stated to them as we think that the judgment of the court below should sufficient in law to sustain a conviction for murder, so stand, and that this appeal should consequently be
that the question of fact to which their minds were dismissed.
turued related to the credibility of certain witnesses and not to the weight or measure of their testimony
pr the existence of the intent. How far that testiNEW YORK COURT OF APPEALS ABSTRACT. mony was modified by that produced by the defendant
or what inferences should be drawn from any of it
was excluded from their inquiry. This was overstepCONFLICT OF LAW - LAW OF LOWER CANADA AS TO ping the province of the judge. The opinion of the SALES OF CHATT ELS — COMITY – WILL NOT BE EXER- judge was calculated to make an erroneous impression CISED TO DEPRIVE CITIZEN OF TITLE. – Personal prop- upon the minds of the jurors, so that it could not bo erty belonging to A, a citizen of New York, who had said that the prisoner had at the outset of their delibeacquired title here, and situated here, was taken with- rations an even chance that the conclusions of the jury out the consent of A to Lower (anada, where it was would be unbiased. And the circumstance that the purchased by B for value and without notice of the verdict was not “murder” but “manslaughter," was rights of A, from a trader in property of like kind, not sufficient to show that the charge did no harm. who had it in his possession. By the law of Lower | As the jury would feel relieved to some extent from Canada the purchaser of personal property from a the necessity of estimating for themselves the value of trader in like property confers good title. Bcouveyed the evidence, the observation of the judge was not the property to defeudant, who brought it again into only erroneous but material. See Read v. Hurd, 7 New York, where his domicile was. In an action by Wend. 409; Fitzgerald v. Alexander, 19 id.402; Bulkeley A against defendant for a conversion of the property v. Keteltas, 6 N. Y. 384; Stokes v. People, 53 id. 164. in the courts of New York, held, that the title of A Judgment reversed. McKenna, plaintiff in error, v. was superior to that of defendant, and the title of B, People. Opinion by Danforth, J. acquired under the law of Lower Canada, would not [Decided June 8, 1880.] be recognized. Though a transfer of personal property valid by the law of the domicile is valid every- NATIONAL BANK - CONSTRUCTION OF FEDERAL where, as a general principle, there is to be excepted STATUTE — STATE COURT HAS JURISDICTION IN ACthat territory in which the property is situated and TION AGAINST BANK IN ANOTHER STATE – ATTACHwhere a different law has been set up, when it is neces- MENT AGAINST PROPERTY OF BANK.-In an actiou in sary for the purposes of justice that the actual situs of the Supreme Court of New York against a National the thing be examined. Green v. Van Buskirk, 7 Wall. bank located in North Carolina, an attachment was 139. Yet statutes have no extra-territorial force and issued and property belonging to the defendant in this where they are permitted to operate in another State State seized. The defendant objected to this proceedthrough coniity, they will not be so allowed to the in- ing on two grounds: First, that the Supreme Court has convenience of the citizen or against the policy of the no jurisdiction; the Federal statute requiring actions State. It would be to the contravention of that policy against a National bank to be brought in the State and to the inconvenience of the citizens of this State where such bank is located (U. S. R. S., $ 5198); and, if its courts should give effect to the statutes of Lower second, that the court has no power to grant an atCanada in respect to purchases from traders to the tachment against such a corporation, that being fordivesting of titles to movable property, acquired and bidden by U. S. R. S., $ 5242 Held, that the objection heid under the law of New York, without the assent was not valid. In the absence of a statute conferring or intervention, and against the will of the owner executive jurisdiction upon the Federal courts the under that law. Notious of property are slight when State courts have the same power and jurisdiction in a bona fide purcbaser of stolen goods gives a good title suits to which a National bank is a party as if it was against the original owner. Kent, C. J., in Wheel- an individual. Bowen v. First Nat. Bank of Medina, wright v. De Peyster, 1 Johns. 471. It is not required 34 How. Pr. 409; Cooke v. State Nat. Bank of Boston, 52 N. Y. 96. A construction which would forbid suits UNITED STATES SUPREME COURT against a National bank outside of its State would
ABSTRACT. prohibit suits by it outside, as the statute extends to actions by as well as against (Kennedy v. Gibson, 8
OCTOBER TERM, 1879. Wall. 498), and prevents it from fully exercising the powers conferred upon it. Beside the statute (U. S. EQUITABLE ACTION - SPECIFIC PERFORMANCE R. S., $ 5136, subd. 4) declares that such a bank may PRICE NOT DEFINITELY FIXED. — C. was indebted to a
sue and be sued in any court of law and equity as bank in a large sum; there were several judgments in fully as any natural person.” The provision as to local its favor against him and he had a suit in chancery jurisdiction is to be construed as permissive, and not against it for an adjustment. An agreeinent in writas mandatory, and therefore not limiting the general ing was made in 1846, between it and him in which, rule which permits civil causes arising under the laws among other things, it was agreed that he should conof the United States to be prosecuted and determined
vey to it his undivided share in certain real property, in the State courts unless exclusive jurisdiction of
after allotment in a suit for partition, which he agreed them has been vested in the Federal courts or unless to bring, at such price as three appraisers to be apCongress has prohibited the State courts from enter-pointed by tho parties should estimate; such price to taining jurisdiction of such cases. Claflin v. House- be credited on the judgments against him. Much of man, 93 U. S. 130; 1 Kent's Com. 395, 396; Bank of the agreement was performed, but in reference to that United States v. Devereaux, 5 Cranch, 85; Osborn v. part relating to the partition and conveyance it was not. United States Bank, 9 Wheat. 738; Teall v. Felton, 1 C. died, and subsequently his devisees, in 1866, effected N. Y. 537. See, also, Houston v. Moore, 5 Wheat. 1. a partition, which fact did not come to tho knowledge The general liability to sue and be sued subjects those
of the bank until 1872. In 1876 it brought this action banks to an action in any court in which an individual in equity for relief against the executors and devisees in like circumstances might be sued, and the subse- under the will of C. Held, that in such a case a court quent enumeration of particular courts without words of equity might entertain an action for specific perof exclusion cannot have the effect to deprive other formance. While the general rule is that a court of courts of jurisdiction. Owens v. Woosman, L. R., 3 equity cannot enforce specific performance when the Q. B. 469. Otherwise a citizen of this State having a price to be paid for it is not definitely fixed, and it claim upon land in which a bank in another State has cannot enforce an agreement to submit that price to an adverse interest would be compelled to go there to
the award of arbitrators, this case differs from those assert his rights, wbich is contrary to what was de
in which that rule applies. In view of a court of cided by the U. S. Supreme Court in Casey v. Adams,
equity a contract for the sale of land is treated, says 21 Alb. L. J. 376. As to the claim that the attachment Justice Story, for most purposes, precisely as if it had is prohibited by section 5242, that section has reference been specifically performed. The vendee is treated as to banks in an insolvent condition only, and its object
the owner of the land and the vendor as the owner of is to prevent one creditor of a corporation whose as- the money. The vendor is deemed in equity to stand sets are insufficient to meet its liabilities from obtain- seized of the land for the benefit of the purchaser, and ing a preference. Order affirmed. Robinson v. Na- the trust attaches to the land so as to bind the heir tional Bank of Newberne, appellant. Opinion by
of the vendor. 1 Story's Eq. Juris., $ 790. Of course Danforth, J.
the equity here stated is the stronger when the pur[Decided June 8, 1880.]
chase-money is actually in the hands of the vendor.
Nor is the principle inflexible that the court will not WILL- CONSTRUCTION OF — DEVISE OF FEE.- A will
specifically enforce the contract where the price is not contained this provision: “I give and bequeath my be- fixed or is left to be fixed by arbitration. In Cheslyn loved wife Susan one-third part of all my property, v. Dalby, 2 Y. & C. Exch. Cas. in Eq. 170, Cheslyn beboth real and personal, and to have the control of my ing indebted to Dalby in a large unliquidated sum, farm as long as she remains my widow, and I wish my gave a deed of trust to Dalby for money borrowed at son George to have the first privilege of carrying on the time, with a stipulation that it should also stand the farm as my wife may see fit and proper, and at the as security for the unliquidated debt of Dalby to be death of my wife all my property, both real and per- afterward ascertained by arbitration. Cheslyn having sonal, to be equally divided between my eight chil- paid the principal sum' secured by the deed of trust, dren. Held, to give the wife a fee in one-third of the
brought suit for a reconveyance, and Dalby filed a testator's real estate, and not a life estate in such cross-bill to have his debt paid out of the property third. The residuary clause of the provision is not
before this was done. The objection was raised that repugnant to the prior gist under the rule which re
this was in the nature of specific performance, and the quires a will to be so construed as to avoid, if possible, amount being uncertain, and no award having been all repugnancy and give effect to all its language.
made, it could not be done. But the objection was There is no occasion to reject one of the clauses in
overruled. Baron Alderson says: “1. It is admitted order to sustain the other, a desperate remedy and to there is some balance due to Thomas Dalby, and it is be resorted to only in case of necessity, so that one agreed that the estate is to be subject to a lien for that rather than both provisions should fail. Trustees, etc., balance. But secondly, there is also an agreement as v. Kellogg, 16 N. Y. 83; Van Nostrand v. Moore, 52 id. to a specific mode of ascertaining that balance in case 20; Covenhoven v. Shuler, 2 Pai. 122. This case is of dispute. Now, the latter has failed by events over within the rule stated in Thornhill v. Hall, 2 C1. & F. which the parties have no control. But it seems to 22, as one which admits of no exception in the con- me, notwithstanding this, the former part remains struction of written instruments, that when one estate entire, and if Mr. Cheslyn has admitted that there is is given in one part of an instrument in clear and a balance due, and has by a deed executed under such decisive terms such estate cannot be taken away or circumstances as that it ought to be enforced, agreed cut down by raising a doubt upon the extent or mean- that his estate should be subject to a lien for that baling or application of a subsequent lause, nor by ance, why am I to decree a reconveyance of the estate inference therefrom, nor by any subsequent words without compelling him to fulfill that part of the that are not as clear and decisivo as the words of the agreement.” It was accordingly referred to a master clause giving that estate. Order affirmed. Roseboom to state an account in which this unascertained balance 1. Roseboom et al., appellants. Opinion by Dan- of Mr. Dalby's debt should be included. In Dinham forth, J.
v. Bradford, L. R., 5 Ch. App. 519, where one partner [Decided June 8, 1980.]
was in a certain event to take the partnership assets at a valuation to be ascertained precisely as in the case EVIDENCE — SWORN COPY OF PAPER OUTSIDE OF before us, Lord Hatherley said: “Here is a man who JURISDICTION.- When an original paper was without has had the whole benefit of the partnership in respect the jurisdiction of the court and the person in whose to which this agreement was made, and now refuses possession it was refused to surrender it, he having to have the rest of the agreement performed on account been examined on commission, a sworn copy was anof the difficulty which has arisen. * * * If the nexed to his deposition; held, under the rule that valuation cannot be made modo et forma the court will when the best evidence is unattainable secondary evisubstitute itself for the arbitrators." Decree of Dist. dence is recoverable, the copy was competent evidence. of Columbia Sup. Ct. reversed. Gunton et al., appel- Binney v. Runell, 109 Mass. 55; Browu v. Wood, 19 Mo. lunts, v. Carroll et al. Opinion by Miller, J.
475; Burton v. Driggs, 20 Wall. 125. Fisher v. Green. UNITED STATES — NOT LIABLE FOR MONEYS DEPOS
Opinion by Craig, J. ITED IN PROCEEDINGS FOR CONFISCATION.—The United TROVER — LIES FOR GRAIN INTERMINGLED WITH States seized certain cotton, belonging to appellants,
OTHER GRAIN WHEN CONVERTED.-Appellee held wareunder the Confiscation Act. The proceeds of sale house receipts for 6,000 bushels of barley stored in the thereof were paid to the clerk under an order of the
warehouse of R., which grain was intermingled with court pending condemnation proceedings, and were by other barley, the whole amount aggregating 18,000 to him deposited in the S. bank, a designated depositary 20,000 bushels. R. being indebted to a bank, had exeof public moneys, to his own credit as clerk. Judg-cuted to it trust deeds of the warehouse under which ment in the proceedings mentioned was rendered in
it took possession of that and the grain therein, and favor of appellants. Tu the meautime the S. bank had refused to deliver the amount for which appellee held become insolvent and except a small dividend, depos- | receipts, although there was enough grain to meet all itors were not paid. Held, that the deposit made by outstanding receipts. Held, that appellee could mainthe clerk was not equivalent to a payment into the tain trover against the bank for conversion of the treasury so as to make the United States liable to the 6,000 bushels of grain. If two persons were the joint appellants for the loss occasioned by the bank's insol- owners of a specific chattel, and one were to sell it and vency. The designated depositaries are intended as convert the proceeds to his own use, will it be conplaces for the deposit of the public moneys of the tended that the other joint owner could not sue in Cnited States; that is to say, moneys belonging to trover, and recover damages for the loss of his half? the United States. No officer of the United States | Trover being for the recovery of damages sustained by can charge the government with liability for moneys the plaintiff for the conversion of his property, it canin his hands not public moneys by depositing them to not matter whether he holds the property thus conhis owu credit in a bank designated as a depositary. verted jointly with another, or in severalty. His right In this case the money deposited belonged for the of property in either case is the same, and the damage time being to the court, and was held as a trust-fund he sustains is not different; and reason and justice repending the litigation. The United States claimed it, quire that the means of obtaining his rights should be but their claim was contested. So long as this contest the same in either case, nor is there any technical rule remained undecided the officers of the treasury could which prohibits it. In Chitty on Pleading, 167, it is said not control the fund. Although deposited with a bank the action lies against any person who had in his posthat was a designated depositary it was aot paid into session, by any means whatever, the personal property the treasury. No one could withdraw it except the of another, and sold it, or used it without the consent court or the clerk, and it was held for the benefit of of the owner, or refused to deliver it when demanded. whomsoever in the end it should be found to belong to. And it has been held that a person owning property Judgment of Court of Claims affirmed. Branch et al., mingled with that of another may, on its conversion, appellants, v. United States. Opinion by Waite, C. J. maintain the action. In Jackson v. Anderson, 4
Taunt. 24; Whitehouse v. Frost, 12 East, 614; Benja
min v. Stremple, 13 Ill. 466, and Boyle v. Levings, 28 id. ILLINOIS SUPREME COURT ABSTRACT. 314, it was held that one tenant in common of a chatMARCH AND MAY, 1880.
tel may maintain trover against the other tenant in
common whero he has converted the property to his CoxstiTUTIONAL LAW – VALIDATING INVALID CON
own use. This right was held to be given under the TRACTS.- Previous to 1875 corporations generally had
statute, but it only enlarges the common-law right. not the power to loan money in Illinois. By an act of
German National Bank v. Meadowcroft. Opinion by the Legislature of that year corporations of other
Walker, C. J. States authorized by their charter to loan money were WILL— CONDITION PRECEDENT TO DEVISE MUST BE allowed to loan money in Illinois, and where such a STRICTLY PERFORMED - EQUITY.— Where the vesting corporation had previously invested and loaned money of title in an estate devised is subject to a precedent it was given power to recover the same. Held, that condition the condition must be strictly performed the statute would validate a contract of loaning pre- and equity will not vest it covtrary to the law. Where riously made, and a mortgage security taken there- there is a substantial deviation from the intent of the upon when no rights of third parties intervened, and testator, as expressed in the will, the title will not that it was not in conflict with the Federal Constitu- vest. Kent, in vol. 4, § 125, in discussing this subtion. Under such circumstances the mortgagor would ject, says: “Precedent conditions must be literally have no such equities as would give him a vested right performed, and even a court of chancery will never as against the equities of the mortgage company. A vest an estate when, by reason of a conditiou precedparty cannot have a vested right contrary to equity ent, it will not vest in law. It cannot relieve from the and justice. When such statutes go no further than consequences of a condition precedent uuperformed." to bind a party by a contract which he has attempted In Vanhorne v. Dorrance, 2 Dall. 317, it is said: to enter into, but which was invalid by reason of some "Where an act is previous to an estate, and that act personal inability on his part to make it, or through consists of several particulars, every particular must neglect of some legal formality, or in consequence of be performed before the estate cau vest or take effect." some ingredient in the contract forbidden by law, the See, also, 1 Jarman on Wills (2d ed.), 672, and notes; question they suggest is one of policy and not one of Reynish v. Martin, 3 Atk. 330. In the last case it is constitutional power. United States Mortgage Co. v. said: “But in our law, where the condition is precedGross. Opinion by Baker, J.; Walker, J., dissented. ent, the legatee takes nothing till the coudition is [Decided March 6, 1880.]
performed, and consequently, has no right to come