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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 v. 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 tho regucircumstances as to make them partners in them; and lar prosecution of his business?" and adding, “Tho it was held that the signature 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 tho 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 the 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 Slutes Bank v. Binney, thus indicating that they must individual member carries on no business separate have thought that in this case there 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 indorsed 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, tho case of Oliphant v. Mathew's, 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 decision in the where a partnership is carried on in the name of an Supreme Court of New York of Oliphant v. Muthews, individual, and a suit is brought against the partners 16 Barb. 608 and the direction of Story, J., to the upon a noto 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 185. 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 business on his own separate ac- sufficient, the court pointed out that iu 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 aud 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. Upou 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 tho 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. Ou 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 plaintiffs as bona fide holders for value without notice, even though they were so indorsed and accepted for the private purposes of Beatsou, and in fraud of his partner. The nature of the partnership business was such as to give Beatson in respect to persons dealing with him in business an implied authority to bind his partnership by bills of exchange, and his partner, although a secret one, must be held responsible upon any bill sigued by Beatson in the name of the firm in favor of a holder whose title cannot be impeached, however mucb Beatson in signing that name may have exceeded the authority and broken the trust reposed in him by the agreement of partnership. As was said by the court in giving judgment in the case of Wintle v. Crowther, 1 C. & J. 316: “Where a partnership name is pledged, the partnership, of whomsoever it may cousist, and whether the partners are named or not, and whether they are known or secret partners, will be bound, unless the title of the person who seeks to charge them can be impeached," and the authorities generally, both English and American, are uniform in support of this view. There is no difference in this respect between the dormant and the ostensible partwer, and when once it is established that a name common to a firm and an individual member of it has been put to a bill as the name of the firm, there is no difference between the liability of partners carrying on business in such a name and the liability of partners carrying on business in a name which bears in itself the stamp and evidence of a partnership. It may perhaps bo argued that in the latter case the bona fide holder without notice is induced by the name itself to trust a firm, and is therefore entitled to have all the responsibility of all the members of that firm, while an individual name would suggest no responsibility other than that of the individual whose name it is; but when it is remembered that firm names are often used by individual traders, while individual names are often used by firms, the argument practically comes to nothing, and a common principle applicable to both cases remains alone consistent with mercantile cxpediency and general law. But assuming that there is no difference, as matter of law, between the two cases, there is as matter of evideuce a very real and very practical difference. A name in itself indicating a firm does not, except in rare instances, of which the case of Stephens v. Reynolds, 5 H. & N. 513, is an example, leave open any doubt as to the meaning of a signature in such name; but a name which in itself indicates au individual is, notwithstauding the effect of any legal presumption, ambiguous, and there are likely to be few, if any, cases where the decision of the jury or of a court will be rested upon the presumption alone. The present case is no exception to the rule, and the presumption in favor of the plaintiffs arising from the fact that Beatson carried on no business separate from that of the partnership really sinks into comparative insiguificance by the side of the additional facts which are proved iu the case. Upon those facts we have to decide, as the courts iu Nicholson v. Ricketts and Re Adansonia Fibre Co., Miles' Claim, were called upon to decide, whether the siguature to the bills upon which the dispute arises was intended to denote and did denoto the partnership of which the defendant was a member. In the first place it is clear that the bills were bills, which, if signed by Beatson for the partnership, were so signed by him without the authority and in fraud of his partner, and in respect of which no action would have lain against Mycock, if they had remained in the hands of Josiah Carr & Son, who took them with notice. In the second place, it is, we think, equally clear that as between Beatson and Mycock the bills were uot treated as having been signed by Beatsou on the partnership account. They were not entered in any partnership book, and indeed, even before the partnership as well as after it com

menced, the accommodation transactions of Beatson were treated as not forming any part of the transactions of his business, and were excluded from the ledger. in the third place, the evidence establishes that the accommodation transactions of Beatson after the commeucement of the partuership diminished rather than added any thing, even temporarily, to the capital of the firm; and lastly, Beatsou himself, called as a witness by the plaintiffs themselves, disproved, as it appears to us, tho fact that in signing the bills in question he signed for the partnership. He stated that he thought he was not inaking Mycock liable for any of the accommodation bills, whether renewals or otherwise, and that he considered them private transactions, and did not enter them in the partnership books. Can any other inference be reasonably drawn from such evidence than that Beatson, in signing the bills, intended to sign and did sign them for himself? We think that no other inference ought to be drawn, and that the jury, in finding that " William Beatson " upon each of the bills was intended to denote the firm, gave a verdict against the evidence, and one which ought not to stand. The reason given in support of their fiuding by the jury that one bill was addressed to the drawee or drawees as of the Chemical Works, Rotherham, and that the other was so connected with it as to stand or fall with it, might have been a good reason in a case where the evidence was in other respects doubtful, but it is in the present case met to some extent by the very form of the bill itself, which, while addressed to the drawee or drawees at the partnership works, contains in the term *Mr.” prefixed to the name “ Wm. Beatsou" an indication that the individual and not the firm was intended, and is entirely outweighed by the clear evi. dence to which we have referred, and we uuderstand that the learned judge who tried the case was himself dissatisfied with the finding. The additional finding that the bank took the bills as the bills of the chemical works is clearly irrelevant if the former finding is wrong, for if the bills were in fact signed not in the name of the partnership, but of Wm. Beatson individually and for his private purposes, the fact that the plaintiffs were unaware that Mycock was a partner with Beatson, and never advanced any money on the faith of his credit, but did at the same time give credit to the name of Beatson as being the name of the owner of the chemical works, can give them no more right against Mycock than if he had been a mortgagee of the works instead of a partner in them. The law in a case of baukruptcy asserts a title in the general body of creditors of a bankrupt to property of which he may have been at the time of his baukruptcy in apparent possession with the consent of the true owner, and upon the faith of which he gained a false credit. But in actions founded upon purely personal contracts, the law does not use the mere moral right which a creditor may attempt to assert against a person in consequence of his having intrusted to another property in the belief of his ownership, of which the creditor may have contracted with him. In other words, in a case like the present there is no conduct on the part of the dormant partner which makes it inequitable on his part to deny, or estops him from denying, his liability upon a contract to which he was in fact no party, from which he has derived no benefit, aud in respect of which he was not held out to the person suing him as liable. As regards this point, nothing turns on the subject-matter of the action being negotiable instruments. Beatson, by giving the use of his name to a partnership of which he was a member, and the only ostensible member, did not preclude himself from making contracts binding himself alone, and in any contracts de fucto made by him, whether by parol or in writing, the question, the answer to which would 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. 338; Taylor v. Boardman, 25 in the case of the Bank of Scotland v. Watson, 1 Dow. Vt. 581; Martiu v. Hill, 12 Barb. 631; French v. Hall, 40, where the bank and its agents carried ou 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 upon 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 tho 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

CRIMINAL LAW – 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 which 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 tho jury what must be established to finding a verdict adverse to the defendant Mycock. It make out thc offense, and leaviug 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 proven if you believe the witnesses Court, we have before us, as the court below had, all

on the part of the people." Held, error. The attenthe materials necessary for finally determining the

tion of thu 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 tho question of fact to which their minds were dismissed.

Judgment affirmed.

turued related to the credibility of certain witnesses and not to the weight or measure of their testimouy

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 tho SALES OF CHATTELS - 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 Cauada, 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 “mauslaughter," was rights of A, from a trader in property of like kind, not sufficient to show that the charge did no har 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. B conveyed the evidence, the observation of the judge was not the property to defendant, wbo 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, plaintis 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.-Iu an action 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 Stato seized. The defendant objected to this proceedthrough conity, 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 held under the law of New York, without the assent was not valid. In tho absence of a statute conferring or intervention, and agaiust the will of the owner executive jurisdiction upon the Federal courts the under that law. Notions 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 y. De Peyster, 1 Jobus. 471. It is not required 34 How. Pr. 409; Cooke v. State Nat. Bank of Boston,

UNITED STATES SUPREME COURT

ABSTRACT.

OCTOBER TERM, 1879.

52 N. Y. 96. A construction which would forbid suits against a National bank outside of its State would prohibit suits by it outside, as the statute extends to actions by as well as against (Kennedy v. Gibson, 8 Wall. 498), and prevents it from fully exercising the powers conferred upon it. Beside the statute (U. S. R. S., $ 5136, subd. 4) declares that such a bank may

sue and be sued in any court law and equity as fully as any natural person." The provision as to local jurisdiction is to be construed as permissive, and not as mandatory, and therefore not limiting the general rule which permits civil causes arising under the laws of the United States to be prosecuted and determined in the State courts unless exclusive jurisdiction of them has been vested in the Federal courts or unless Congress has prohibited the State courts from entertaining jurisdiction of such cases. Claflin v. Houseman, 93 U. S. 130; 1 Kent's Com. 395, 396; Bank of United States v. Devereaux, 5 Cranch, 85; Osborn v. United States Bank, 9 Wheat. 738; Teall v. Felton, 1 N. Y. 537. See, also, Houston v. Moore, 5 Wheat. 1. The general liability to sue and be sued subjects those banks to an action in any court in which an individual in like circumstances might be sued, and the subsequent enuineration of particular courts without words of exclusion cannot have the effect to deprive other courts of jurisdiction. Owens v. Woosman, L. R., 3 Q. B. 469. Otherwise a citizen of this State having a claim upon land in which a bank in another State has an adverse interest would be compelled to go there to assert his rights, wbich is contrary to what was decided by the U. S. Supreme Court in Casey v. Adams, 21 Alb. L. J. 376. As to the claim that the attachment is prohibited by section 5:242, that section has reference to banks in an insolvent condition only, and its object is to prevent one creditor of a corporation whose assets are insufficient to meet its liabilities from obtaining a preference. Order affirmed. Robinson v. National Bank of Newberne, appellant. Opinion by Danforth, J. [Decided June 8, 1880.]

WILL-CONSTRUCTION OF — DEVISE OF FEE.-A will contained this provision : "I give and bequeath my beloved wife Susan one-third part of all my property, both real and personal, and to have the control of my farm as long as she remains my widow, and I wish my sou George to have the first privilege of carrying on the farm as my wife may see fit and proper, and at the death of my wife all my property, both real and personal, to be equally divided between my eight children. Held, to give the wife a fee in one-third of the testator's real estate, and not a life estate in such third. The residuary clause of the provision is not repugnant to the prior gift under the rule which requires a will to be so construed as to avoid, if possible, all repugnancy and give effect to all its language. There is no occasion to reject oue of the clauses in order to sustain the other, a desperate remedy and to be resorted to only in case of necessity, so that one rather than both provisions should fail. Trustees, etc., v. Kellogg, 16 N. Y. 83; Van Nostrand v. Moore, 52 id. 20; Covenhoven v. Shuler, 2 Pai. 122. This case is within the rule stated in Thornhill v. Hall, 2 Cl. & F. 22, as one which adınits of no exception in the construction of written instruments, that when one estate is given in one part of an instrument in clear and decisive terms such estate cannot be taken away or cut down by raising a doubt upon the extent or meaning or application of a subsequent lause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisivo as the words of the clause giving that estate. Order affirmed. Roseboom 1. Roseboom et al., appellants. Opinion by Danforth, J. [Decided June 8, 1980.]

EQUITABLE ACTION SPECIFIC PERFORMANCE PRICE NOT DEFINITELY FIXED.-C. was indebted to a bank in a large sum; there were several judgments in its favor against him and he had a suit in chancery against it for an adjustment. An agreement in writing was made in 1846, between it and him in which, among other things, it was agreed that he should convey to it his undivided share in certain real property, after allotment in a suit for partition, which he agreed to bring, at such price as three appraisers to be appointed by tho parties should estimate; such price to be credited on the judgments against him. Much of the agreement was performed, but in reference to that part relating to the partition and conveyance it was not. C. died, and subsequently his devisees, in 1866, effected a partition, which fact did not come to tho knowledge of the bank until 1872. In 1876 it brought this action in equity for relief against the executors and devisees under the will of C. Held, that in such a case a court of equity might entertain an action for specific performance. While the general rule is that a court of equity cannot enforce specific performance when the price to be paid for it is not definitely fixed, and it cannot enforce an agreement to submit that price to the award of arbitrators, this case differs from those in which that rule applies. In view of a court of equity a contract for the sale of land is treated, says Justice Story, for most purposes, precisely as if it had been specifically performed. The vendee is treated as the owner of the land and the vendor as the owner of the money. The vendor is deemed in equity to stand seized of the land for the benefit of the purchaser, and the trust attaches to the land so as to bind the heir of the vendor. 1 Story's Eq. Juris., $ 790. Of course the equity here stated is the stronger when the purchase-money is actually in the hands of the vendor. Nor is the principle inflexible that the court will not specifically enforce the contract where the price is not fixed or is left to be fixed by arbitration. In Cheslyn v. Dalby, 2 Y. & C. Exch. Cas. in Eq. 170, Cheslyn being indebted to Dalby in a large unliquidated sum, gave a deed of trust to Dalby for money borrowed at the time, with a stipulation that it should also stand as security for the unliquidated debt of Dalby to be afterward ascertained by arbitration. Cheslyn having paid the principal sum' secured by the deed of trust, brought suit for a reconveyance, and Dalby filed a cross-bill to have his debt paid out of the property before this was done. The objection was raised that this was in the nature of specific performance, and the amount being uncertain, and no award having been made, it could not be done. But the objection was overruled. Baron Alderson says: “1. It is admitted there is some balance due to Thomas Dalby, and it is agreed that the estate is to be subject to a lien for that balance. But secondly, there is also an agreement as to a specific mode of ascertaining that balance in case of dispute. Now, the latter has failed by events over which the parties have no control. But it seems to me, notwithstanding this, the former part remains entire, and if Mr. Cheslyn has admitted that there is a balance due, and has by a deed executed under such circumstances as that it ought to be enforced, agreed that his estate should be subject to a lien for that balance, why am I to decree a reconveyance of the estate without compelling him to fulfill that part of the agreement." It was accordingly referred to a master to state an account in which this unascertained balance of Mr. Dalby's debt should be included. In Dinham v. Bradford, L. R., 5 Ch. App. 519, where one partner was in a certain event to take the partnership assets

FOR

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. lants, 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

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 exoof public moneys, to his own credit as clerk. Judy- 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. In the meantime 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 C'nited 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 own 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, 13 111. 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 teuant in common where be bas converted the property to his

own use. CONSTITUTIONAL LAW - VALIDATING INVALID CON

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 13E 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 giveu 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 contrary to the law. Where viously made, and a mortgage security taken there- there is a substantial deviation from the intent of the upon when po 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 Coustitu- vest. Kent, in vol. 4, § 1:25, in discussing this subtion. Under such circumstances the mortgagor would ject, says: “Precedent conditious must be literally have no such equities as would give him a rested 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 Vanhorue 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

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