Gambar halaman

may be briefly stated. We have first the Crimes Act of ciously, willfully and fraudulently making false entries 1860 (P. L. 382), the 116th section of which prescribes in the books, reports and statements of the said bank. and punishes the offense of embezzlement by any person James Ryon, for plaintiff in error. "being an officer, director, or member of any bank, or other body corporate or public company.

Then A. W. Schalck, district attorney, Geo. R. Kaercher we have the act of May 1, 1861 (P. L. 515), entitled “A

and Lin Bartholomew, for defendaut in error. supplement to an act to establish a system of free PAXSON, J. The second assignment denies the jurisbanking in Pennsylvania, and to secure the public diction. Tho plaintiff in error was convicted upon an against loss from insolvent banks, approved 31st March, indictment charging him as receiving teller of the First 1860,” which also prescribes and punishes embezzle- National Bank of Mahanoy City, with fraudulently ment by bank officers. Lastly, there is the act of 12th making false entries in the books, reports, and stateof June, 1878 (P. L. 196), which amends tho aforesaid ments of said bank, with intent to injure and defraud 116th section of the act of 1860, by substituting a new the said bank, and we are asked to reverse the judgsection in its place, and imposing a different punish

ment upon the ground that tho offense charged having ment. This leaves the acts of 1861 and 1878 as the only been committed by an officer of a National bank, it is ones which could possibly support the indictment. It

not the subject of an indictment in a State court. was urged, bowever, and with much force, that the act Commonwealth ex rel. Torrey v. Ketner, reported above, of 1861 was only intended to apply to banks organized was relied upon to sustain this position. Torrey was under the free banking law, of which it forms a part; indicted as cashier of a National bank with embezzling and that as to the act of 1878, the offeuse charged in the funds of the bank, and was discharged upon habeus the indictment was committed prior to its passage. corpus, for the reason that the offense was not indictaThis fact was formally conceded upon the argument, ble at common law, and our statutes defining and punand while we might not be able for such reason to

ishing the offense do not apply to National banks. grant relief upon habeas corpus, it furnishes a conclu- Here the indictment charges an offense which was a sive reason why, upon a trial in the court below, the

crime at common law. In Commonwealth v. Beamish, Commonwealth could derive no aid from the act of

31 P. F. S. 339, it was decided that the fraudulent al1878.

teration of a book, known as a tax duplicate, was We are spared further comment upon these acts for forgery at common law. It is plain, under this authorthe reason that they have no application to National ity, that the plaintiff in error could bave been indicted banks. Neither of them refers to National banks in

for forgery. Tho indictment here is laid under the terms, and we must presume that when the Legislature

statute, and does not charge the offense of forgery in used the words "any bank," that it referred to banks the technical manner required by the strict rules of created under and by virtue of the laws of Pennsylva- the common law, but, as in Commonwealth v. Beamish, nia. The National banks are the creatures of another

is good under our Criminal Procedure Act. That the sovereignty. They were created and are now regulated act of Assembly does not call it forgery makes no difby the acts of Congress. When our acts of 1860 and ference. It is the same offense. 1861 were passed there were no National banks, nor The first assignment alleges error in another case, in eren a law to authorize their creation. When the act

which the plaintiff in error was convicted and senof 1878 was passed, Congress had already defined and tenced. We cannot, upon this writ of error, reverse a panished the offense of embezzlement by the officers judgment in another case though against the same of such banks. Thero was therefore no reason why party. Nor is it material, as the record shows the the State, even if it had the power, should legislate plaintiff has served out the term of imprisonment imupon the subject. Such legislation could only produce posed by the court. uncertainty and confusion, as well as a conflict of

Judgment affirmed. jurisdiction. In addition, there would be the possible danger of subjecting an offender to double punish- MORTGAGE OF SUBSEQUENTLY ACQUIRED ment, an enormity which no court would permit if it

PERSONAL PROPERTY. had the power to prevent it. An act of Assembly, prescribing the manner in

ENGLISH HIGH COURT OF JUSTICE, COMMON PLEAS which the business of all banks shall be conducted, or

DIVISION, MAY 14, 1880. limiting the number of directors thereof, could not by

LAZARUS V. ANDRADE, 43 L. T. Rep. (N. S.) 30. implication be extended to National bauks, 1-r the reason that the affairs of such banks are exclusively The grantor of a bill of sale assigned to the grantee the under the control of Congress. Much less can we, by

whole of the stock-in-trade, chattels, goods, and effects mere implication, extend penal statutes, like those of

in certain specified premises, and also the stock-in

trade, goods, chattels, and effects which might at any 1861 and 1878, to such institutions.

timo during the continuance of the security bo brought The offeuse for which the relator is held is not in

into the premises either in addition to or on substitudictable either at common law or under the statutes of tion for the stock-in-trade, goods, chattels, and effects Pennsylvania. We therefore order him to be dis- therein at the time of the making of the bill of sale. charged.

Held, by Lopes, J. (in further consideration), that the

property in stock-in-trade brought upon tho premises PENNSYLVANIA SUPREME COURT, MAY 3, 1880.

subsequently to the making of the bill of sale passed

by it to the grantee. LUBERG, Plaintiff in Error, v. COMMONWEALTH OF

THIS was an interpleader issue tried before Lopes, J. PENNSYLVANIA.

The plaintiff was the holder of a bill of sale given

by one Phillips, whereby he assigned to the plaintiff A State court has jurisdiction to try an indictment against

“all and singular the stock-in-trade, chattels, goods, the cashier of a National bank for fraudulently making false entries in its books with the intention to injure

and effects now being in, upon, or about the messuage the bank, such acts being forgery at common law.

or dwelling-house, warehouse and premises, situato and being No. 62 Wilson street, Finsbury, in the

county of Middlesex, tho particulars whereof are set E. Luberg, the plaintiff in error, was convicted forth in the schedule hereunder written. And also upon an indictment charging him as receiving teller of the stock-in-trade, goods, chattels, and effects which the First National Bank of Mahanoy City, a bank shall or may at any time or times during the continuduly incorporated, organized and established under ance of this security be brought into the aforesaid the laws of the United States, with unlawfully, mali- messuage or dwelling-house, warehouse and premises,


or be appropriated to the use thereof, either in addition to or in substitution for stock-in-trade, goods, chattels, and effects now being therein or any of them."

The schedule specified various quantities of ostrich and other feathers and some furniture.

The defendant, an executive creditor, seized the property on Phillips's premises, including stock which had been brought there in substitution for that which was there at the date of the making of the bill of sale.

LOPES, J. This bill of sale purported to assign to the plaintiff all the stock-in-trade, chattels, goods and effects in the messuage, particulars whereof were set forth in a schedule thereunder written. And also the stock-in-trade, goods, chattels, and effects which should or might at any time or times during the continuance of the security be brought into the messuage, warehouse and premises, or be appropriated to the use thereof, either in addition to or in substitution for stock-in-trade, chattels, and effects now being therein, or any of them. The sheriff had seized stock-in-trade not being contained in the said schedule, nor in the premises when the bill of sale was executed, but other stock-in-trade not comprised in the schedule, which had been brought into the premises by the grautor subsequently to the date of the bill of sale. Such lastmentioned property had been brought into the premises in addition to or in substitution for stock-in-trade in the premises when the bill of sale was executed. It was contended for the defendant (the execution creditor) that the goods brought into the prenuises subsequently to the execution of the bill of sale did not pass to the plaintiff, and that the title of the defendant in respect of them was preferable to the title of the plaintiff (the claimant). Holroyd v. Marshall, 7 L. T. Rep. (N. S.) 172; and Leatham v. Amor, 38 L. T. Rep. (N. S.) 785, were relied upon by the plaintiff, and Belding v. Read (ubi sup.) by the defendant. The principle deducible from these decisions is, that property to be after acquired, if described so as to be capable of being identified, may be, not only in equity but also at law, the subject-matter of a valid assignment for value. The contract must be one which a court of equity would specifically enforce. Belding v. Read, 3 H. & C. 955, was decided before the Judicature Acts, and is distinguishable from the present case. The ground of that decision was that the description, "all other the personal estate and effects whatsoever now being or hereafter to be on the premises or elsewhere in the United Kingdom,” was so vague that it did not entitle the claimant to institute a suit for specific performance of the contract. Neither the character of the property nor its whereabouts was indicated, and there was nothing to earmark it. In this case the property is to be brought into the premises, or to be appropriated to the use thereof, either in addition to or in substitution for property then on the premises. I think the assignment sufficiently specific, the property in question having become specific by being brought on to the premises in addition to or in substitution for property mentioned in the schedule. The case of Leatham v. Amor (ubi sup.) is a strong authority in favor of this view.

Judgment for the plaintiff.

portion of the stockholders of the company disputed the validity of the sale and of the bonds, and appointed a committee to represent the stockholders. An arrangement was made between the two committees whereby the opposition to the foreclosure sale was withdrawu and the stockholders of the company were awarded the right to subscribe for the stock of a new company to be organized by the boudholders' committee called the W. company, upon the terms set forth in a circular mentioned. By that circular the stockholders named were to have the option for thirty days from its date upon the payment of ten dollars per share in installments and the surrender of their old stock to join in the W. corporation. After thirty days the right to do this was to cease; the railroad property was to pass at once to the new corporation. This company was organized. Plaintiff in his complaint set up that the W. company, the defendant, obtained the property of the T. & W. company; that plaintiff was an owner of shares in the latter company; that he had no kuowledge of the agreement between the committees until long after the expiration of the thirty days named, and that after he had notice and before the payment of the last assessment he tendered to the chairman of the purchasing committee of the bondholders the amount of the assessment upon his shares, and offered to surrender them, and demanded stock in the W. corporation, which demand was not complied with. Held, that no action for damage would lie by plaintiff against the W. corporation. If the foreclosure sale was invalid plaintiff might by proper proceeding attack it, but if he claimed rights under the arrangement made for the benefit of the stockholders of the W. company between the committees, he must show that he had complied with the terms of the arrangement. Judgment affirmed. Thornton, appellant, v. Wabash Railway Co. et al. Opinion by Rapallo, J. [Decided Sept. 21, 1880.)

NEGOTIABLE INSTRUMENT -- PAYMENT OF DEBT BY CHECK-- LOSS OF CHECK - CERTIFIED CHECK - PAYMENT ON FORGED INDORSEMENT - RIGHTS AND LIABILITIES OF PARTIES.–Where a party pays his own debt by a check to the order of his creditor or of a party nominated by his creditor, he can be called upon to pay it again in case the creditor loses or is defrauded of the check and it is paid to the finder or fraudulent holder on a forged indorsement. And the case is not varied by the circumstance that the check was certified after delivery and before payment, it net being shown that such certification was procured by tbe creditor to whom the check was given or by the payee of the check. If the check had been lost and the finder had procured it to be certified and forged the indorsement, the certification would not be binding upon the bank nor affect the rights of the parties after it had been surrendered. It is only in case the true owner of the check has received the certification that recourse can be had upon it against the certifying bank notwithstanding the subsequent loss of the check and the payment upon the forged indorsement. In this case where plaintiff received a check to the order of H. from the defendants on the M. bank, and this check was certified by the M. bank and afterward paid upon a forged indorsement, the amount of the check having been charged by defendant against plaintiff and by them settled, held, that defendant was liable to plaintiffs for the amount of the check, it not appearing that the certification was obtained by plaintiffs or their agent, or that the claim of defendants upon the Y. bank for the check had been barred by the statute of limitation. It is well settled that a bank paying upon a forged indorsement must bear tbe loss and cannot charge to a depositor. Judgment affirmed. Thompson et al. v. Bank of British North America, appellants. Opinion by Rapallo, J. [Decided Sept. 21, 1880.]


CORPORATION-RAILROAD COMPANY - RIGHTS OF STOCKHOLDER-FORECLOSURE OF MORTGAGE -- FORMATION OF NEW COMPANY. An action was carried on to foreclose a mortgage upon the railroad aud franchises of the T. & W. railroad company, and the mortgaged property sold thereunder to a committee representing the holders of the mortgage funds. A

RECORDING ACT - ASSIGNMENT OF MORTGAGE- UN- judgment operates as an estoppel as to that question in AUTHORIZED DISCHARGE BY ASSIGNOR AFTER ASSIGN- any subsequent suit between the same parties, whether MENT - CONTENTS OF ASSIGNMENT AND RECORD the second suit be upon the same or some other cause ESTOPPEL-SILENCE OF ASSIGNEE AFTER KNOWLEDGE of action. Hopkins v. Lee, 6 Wheat. 109; Campbell v. OF UNAUTHORIZED DISCHARGE. — (1) Decker, the Cross, 39 Ind. 155-158; Bank of the U. S. v. Beverly, 1 owner of laud, mortgaged the same to Vaughn; How. 134, 135; Davis v. Brown, 94 U. S. 423. So, when Vaughn assigned the mortgage to Viele. Both the an issue is made in a case and decided, whether with mortgage and assignment were recorded. Thereafter or without trial, the judgment is conclusive between Vaughn, without authority, discharged this mortgage. the same parties in any subsequent action for the same Ludlum, who acquired title to the land from Decker, cause, and as to all questions which were or might have knowing that the discharge was without right, exe- been raised upon the first trial. Stockton v. Ford, 18 cuted a mortgage to Hubbard, who had like knowledge. How. 418; Mallony v. Horan, 49 N. Y. 111. But Hubbard assigned this mortgage to Judson. Held, that where a suit is tried and determined between parties, the discharge of the first mortgage was invalid and the mere fact that in that suit a question might have that mortgage was prior to the second. The record of been raised, tried, and determined, does not prevent an assignment of a mortgage is not constructive notice the raising of such question in a suit upon a different to those claiming under the mortgagor but is to those cause of action. Cromwell v. County of Sac, 94 U. S. claiming under the mortgagee. Campbell v. Vedder, 3 356; Davis v. Brown, id. 423-4:28; Russell v. Rau, id. Keyes, 174; Gillig v. Maas, 28 N. Y. 199; Purdy v. 602; Nims v. Vaughn, 40 Mich. 356-360; Jacobson v. Huntington, 42 id. 334; Green v. Warnick, 64 id. 220. Miller, 41 id. 90-92. In this case A began a suit in But a recorded assignment is notice that the assignor Iowa against B, to obtain his possession and quiet his bas no right to discharge the mortgage. Belden v. title to certain lands standing in A's name. Pending Meeker, 47 N. Y. 308; Vanderkemp v. Shelton, 11 this suit A conveyed a portion of the lands to C, who Paige, 29. The record of the assigument is notice to intervened as co-plaintiff, and asked that this portion others than those acquiring rights in the mortgage might be set off to her. The case was tried and subitself. It shows to all title out of the assignor and in- mitted. Before decision A was adjudicated a bankcapacity to discharge. An assignment which contains rupt, and his assignee was substituted as plaintiff, and the name of the mortgagor and of the assignor, and the lands still standing in A's name were set off to his the date of the mortgage, and a covenant as to the assignee, but yo question was raised as to the validity amount due, is sufficiently certain when there is no of the conveyance from A to C. Subsequently A's other mortgage to the assiguor bearing the same date. assignee filed a bill against C to have the conveyance There need not be a description of the lands to make set aside as a fraud upon A's creditors. Held, that the it the duty of the clerk to record. It is not the duty | proceedings in Iowa were not an estoppel. District, E. of the clerk to note tbe record of an assignment in the D. Michigan, June 14, 1880. Radford v. Folsom. Opinmargin of a mortgage. Moore v. Stevens, 50 Barb. 442, ion by Browu, D. J. was not rightly decided. Judson got no greater rights

PATENT — INVENTION IN FORM OF A BOOK -- MUNICIthan Hubbard, by the assignment. The doctrine is

PAL CORPORATION LIABLE FOR INFRINGEMENT. — (1) A fully established that the assignee of a mortgage takes

bond and coupon register, in the form of a book, with not only subject to the equities existing between the

a page or pages spaced for each bond and its coupons original parties, but also subject to the latent equities

of any series of coupon bonds, and with the spaces which exist in favor of third persons against the mort

numbered and designated to show what bonds and gagor. Bush v. Lathrop, 22 N. Y. 535; Schaeffer v.

coupons they are for, while any of them are outstandReilly, 50 id. 61; Trustees of Union College v. Wheeler,

ing, and for receiving them for safe-keeping as vouch61 id 88; Green v. Warnick, C4 id. 220. In this case

ers, or memoranda, when any of them are taken up or Judge Earl states the rule with accuracy in the terse

paid, held to be a legal subject for a patent. It is not phrase of Lord Thurlow in Davis v. Austin, 1 Ves. 247,

a proper subject for copyright, as although the plan is that "a purchaser of a chose in action must abide by

the same for registers for different bonds of a series, the case of the person from whom he buys." The case

and for different series of bonds, the registers are not was not affected by the fact that the mortgage given to

copies of one another, and the right to multiply copies Hubbard was without consideration and never had

would afford no protection at all. A copyright is a inception until its assignment to Judson, who was a

right to copy merely, as the word imports, and covers purchaser. (2) Viele knew of the discharge of Vaughn

only the multiplication of copies. Perris v. Hexamer, but took no steps to correct the record or to foreclose

99 U. S. 674; Baker v. Selden, S. C. U. S., Oct. 7, 1870, his mortgage. Held, that he was not estopped from

20 Alb. L. J. 168. There is no difference because the asserting his mortgage against Judson. In the case contrivance is in the form of a book, although books of Cornish v. Abington, 4 Hurl. & Norm. 550, which

are commonly copyrighted. Hawes v. Washburn, 5 (). was followed by the court below, the silence of one

G. 491. (2) A city is liable in its corporate capacity for party, knowing facts, operated as a fraud and actually,

the infringement of a patent. Circuit, S. D. New itself, misled the other party. In this case all the facts

York, June 15, 1880. Munson v. Mayor of New York. was upon the record and Judson was not misled by

Opinion by Wheeler, D. J. the silence of Viele. A proper search of the record would have shown the invalidity of the assigument.

PATENT LICENSE — BREACH OF COVENANT DOES NOT Judgment of General and Special Term reversed and

FORFEIT. — A breach of covenant by the licensee does new trial ordered. Bryan, appellant, v. Judson. Opin

not per se work a forfeiture of a patent license. A ion by Finch, J.

few patent cases beginning with Brooks v. Stolley, 3 (Decided Sept. 21, 1880.]

McLean, 523, hold otherwise. But Hartell v. Tilghman, 99 U. S. 547, overrules these. Until put an end

to in a proper way the contract still exists. It cannot "NITED STATES CIRCUIT AND DISTRICT be treated as ended, as a legal consequence of a failure COURT ABSTRACT.*

to pay royalties. To this effect are the authorities,

even before the case of Hartell v. Tilghman. See WilFORMER ADJUDICATION - WHAT DOES AND WHAT

son v. Sandford, 10 How. 99; Hartshorn v. Day, 19 id. DOES NOT CONSTITUTE - ESTOPPEL. —

- Where a question 211; Goodyear v. Union R. Co., 4 Blatchf. 63; Blanchis distinctly put in issue, and tried and decided, the

ard v. Sprague, 1 Cliff. 288; Merserole v. Union Paper

Collar Co., 6 Blatchf. 356-7. Circuit, Massachusetts, * Appearing in 3d Federal Reporter.

July 24, 1880. White v. Lee. Opinion by Lowell, C. J.


PENNSYLVANIA SUPREME COURT AB- under him, impress it with any character he should STRACT.

see proper. There is no particular sanctity in the natu

ral bed of a stream, which is perpetually changing its LUNATIC- - DEED OF, WHEN AVOIDED - RATIFICA

course from accidental causes. And in speaking of TION — WHEN CONTRACT HIELD VALID. - It is a general

the rule, that water shall flow ubi currere solebat et rule that a grantor in a deed may avoid his conveyance consuevit, he says it applies rather to the duty of reby proof that he was non compos mentis at the time of turning it than to the channel through which it flows. its execution. Bensell v. Chancellor, 5 Whart. 371; 2 And so in Sutclife v. Booth, 32 L. J. Q. B. 136, it was Kent's Com. 451; Gibson v. Loper, 6 Gray, 279. Like held per Wightman, J., that a water-course, though the deed of an infant, a lunatia's deed may be ratified artificial, may have been originally made under such and confirmed. Where there is no evidence of ratifi- circumstances, and have been so used as to give all the cation after restoration to reason, it is impossible, upon rights that the riparian proprietors would have had legal principles, that the estate passed to the grantee had it been a natural stream. Of like import is the in the deed. An insane person is incapable of making

case of Nuttall v. Bracewell, L. R., 2 Exchq. 1, in a valid deed for he wants the consenting mind. In which the chancellor says: “I see no reason why the Moulton v. Camroux, 2 Exch. 487, an action to recover law applicable to ordinary running streams should not money paid for annuities, it was held that when a per- be applicable to such a stream as this, for it is a natuson of apparently sound mind, and not known to be ral flow or stream of water, though flowing in an artiotherwise, enters into a contract for the purchase of

ficial channel." So, also, on a similar footing ho puts property which is fair and bona fide, and which is exe- the case where two adjoining riparian owners should cuted and completed, and said property has been paid by agreement so alter or divert a stream that it shall for and enjoyed, and cannot be restored so as to put run in two channels instead of one. In such case he the parties in statu quo, such contract cannot after- holds that a grantor of land on the new stream would ward be set aside, either by the alleged lunatic or those have all the rights of a riparian owner. See, also, who represent him. A like doctrine prevailed in Beals Stockport Waterworks Co. v. Potter, 32 L. J. Q. B. v. Lee, 10 Barr, 56. The decision iu Lancaster Nat. 130; City of Reading v. Althouse. Opinion by GorBank v. Moore, 28 P. F. S. 407, rests on the same prin

don, J. ciple— there was neither fraud nor knowledge of the [Decided March 22, 1880.] insanity. Without inconsistency, in Moore v. IIershey, 36 Leg. Int. 412, it was ruled that it is competent in an

MASSACHUSETTS SUPREME JUDÍCIAL action by an indorser of a note made by a lunatic, for

COURT ABSTRACT. the lunatic to defend, either by showing that the indorser had knowledge of the lunacy, or that the note

JULY, 1880. was originally obtained fraudulently, or without proper

CONFLICT OF LAW – JURISDICTION AS TO CLAIMS FOR consideration. Paxson, J., said: “I know of no case

MONEYS STOLEN FROM MAJLS AND RECOVERED - TRUST in which it has been held that a lunatio, when sued

DEED OF PROPERTY STOLEN, - Plaintiff executed a upon his contract, may not show want of considera

deed to defendant, Burt, who was postmaster at Bostion." After speaking of the rule which had been

ton, conveying certain real and persoual property in urged in favor of the plaintiff, he adds: “We place

trust, to apply the proceeds to pay all claims growing our ruling upon the broad ground that the principle of

out of money and property stolen by the plaintiff from commercial law above referred to does not apply to the

letters in the Boston post-office, aud return any balcase of commercial paper made by a madman." In

ance remaining to the grantor. It appeared that all Elliott v. Ince, De G. M. & G. 475 (487), it is said that

the property was the proceeds of money and property Moulton v. Camroux was called a decision of neces

stolen by plaintiff from the mails. By the United sity, and it is suggested that the same principles might

States statutes (U. S. R. S., S$ 4050, 4058), “all moneys apply to sales of land or mortgages. But in this coun

taken from the mails of United States by robbery, try the rule is not universally extended to sales of per

theft or otherwise, which come into the possession or sonalty, and is not applied to conveyances of real

custody of any of the agents of the post-office departestate. Crawford v. Scovell. Opinion by Trunkey, J.

ment, or any other officers of the United States, or any [Decided March 22, 1880.]

other person, shall be paid to the order of the postSURETYSHIP- FORBEARANCE DOES NOT DISCHARGE master-general, tu be kept by hiin as other moneys of SURETY. – Mere forbearance, however prejudicial to the post-office departmeut to and for the use and benethe surety, will not discharge him. This rule applies fit of the rightful owner, to be paid whenever satisfacwhere a creditor suffers a judgment to lose its lien for tory proof thereof shall be made," etc. Held, that the want of revival against the principal debtor, and trust in the deed could not be enforced. By the prothereby subsequent creditors are enabled to take the visions referred to the postmaster-general has the ex land. United States v. Simpson, 3 P. & W. 437. Winton clusive right to the custody of money or other property v. Lilile. Opinion by Trunkey, J.

stolen from the mails and which comes into the pos[Decided May 3, 1880.]

session of any officer of the United States or other WATER-COURSE

person, and the exclusive jurisdiction to determine WHEN ARTIFICIAL TREATED AS

who are the rightful owners and to distribute it among NATURAL COMPENSATION


them. No court and no individual by an agreement EMINENT DOMAIN. - A provision of statute that com

with the thief can take away this right or defeat this pensation shall be made for damages to owners of land upon which a spring or stream of water is situated, by jurisdiction. The case is not altered by the fact that

the deed did not convey the identical property or reason of the permanent appropriation of the same under the power of eminent domain, held to apply to

money stolen from the mails. When plaintiff's propan artificial water-course of such long continuance

erty was transferred to Burt the jurisdiction of the "that the memory of man runneth not to the con

postmaster-general attached, and this court has no

right to determine who is entitled to tbe property. trary.” Such a stream, for all practical purposes, is a

Laws v. Burt. Opinion by Morton, J. natural water-course prescriptively, and therefore legally it is so. The right to it could be no better were CRIMINAL LAW FORGERY – MATERIAL ALTERAit natural. As was said by Gibson, C. J., in Seibert v. TION CONSTITUTES. — The material alteration of a Levan, 8 Barr, 383: “Whilst the grantor was lord of genuine written instrument is forgery. Accordingly the whole, he might assign a permanent channel to the where defendant was indicted for forgery of a certain stream, and as regards himself and those who claim receipt and it was shown that he had merely added


petency or its sufficiency as matter of law. Parrott v. Thacher, 9 Pick. 426; Vail v. Rice, 5 N. Y. 155; Partridge v. Forsyth, 29 Ala. 200; Robinson v. United States, 13 Wall. 363. Jones v. Hoey. Opinion by Gray, C. J.


certain words and figures to a genuine receipt so as to increase the amount, held, that there was no variance. The crime of forgery at common law is defined to be the fraudulent making or alteration of a written instrument to the prejudice of apother's right. 4 BI. Com. 247. It is not necessary to the offense that the whole instrument should bo fictitious. A fraudulent insertion of additional words, or an alteration in a material part of a true document, by which another may be defrauded, is a forgery, and is well described as such. The Gen. Stats., ch. 102, $ 1; imposes punishment upon any one who falsely makes, alters, forges or counterfeits certain written instruments therein named. When this statute was passed, it had been settled by the law of England under similar statutes, that a forgery of the whole instrument and a material alteration of it were not distinct offenses, and that the latter act was well charged in criminal proceedings as a forgery of the whole. There are several cases in which the English rule has been followed by the courts of this country, but none in which it appears to have been departed from. See Commonwealth v. Wood, 10 Gray, 478; Commonwealth v. Butterick, 100 Mass. 12; State v. Flye, 26 Me. 312; State v. Floyd, 5 Strobh.58; State v. Weaver, 13 Ired. 491; State v. Maxwell, 47 Iowa, 454; State v. Marvels, 2 Harring. (Del.) 527. Commonwealth of Massachusetts v. Boutwell. Opinion by Colt, J.

STATUTE OF FRAUDS — CONTRACT INVALID BY, CAN ONLY BE AVOIDED BY PARTIES TO- MARINE INSURANCE — INSURABLE INTEREST. -- Machado, who had by a verbal contract agreed to purchase a vessel for $11,000, payable on the execution of a proper bill of sale, no part of the money being then paid, caused the vessel to be insured. Shortly after the bill of sale was executed to a third person in trust for Machado, and a part of the purchase-money paid. In an action upon the policy for a loss thereafter occurring, it was set up in defense that Machado had not, at the time of the insurance, an insurable interest in the vessel, the contract for its sale to him not being valid under the statute of frauds, and being incapable of enforcement. Held, that the defense would not avail. The oral contract to purchase was not void or illegal by reason of the statute of frauds. Indeed, the statute presupposes au existing lawful contract; it affects the remedy only as between the parties, and not the validity of the contract itself; and, where the contract has actually been 'performed, even as between the parties themselves, it stands unaffected by the statute. It is therefore to be treated as a valid subsisting contract when it comes in question between other parties for purposes other than a recovery upon it.” Townsend v. Hargraves, 118 Mass. 325. Machado had, under his oral agreement, an interest in the vessel, and would bare suffered a loss by her injury or destruction. Eastern Railroad v. Relief Ius. Co., 98 Mass. 420. Amsink v. American Insurance Co. Opinion by Eudicott, J.

USAGE- AS TO SALE OF TOBACCO BY WEIGHT AT TIME OF PACKING INSTEAD OF AT THAT OF SALE-ONE WITNESS MAY PROVE USAGE. — (1) Where tobacco was sold by sample and by weight, without more specifio agreement, held, that evidence of a general usage was admissible to show that the weight was to be computed as previously ascertained at the time of packing and marked on the cases, and not by the actual weight at the time of the sale. Bottomley v. Forbes, 6 Scott, 866; Barry v. Bennett, 7 Metc. 354; Miller v. Stevens, 100 Mass. 518. (2) Notwithstanding the dictum in Boardman v. Spooner, 13 Allen, 353, 359, there can be no doubt, at the present day, that the circumstance that but one witness testifies to a usage is important only as bearing upon the credibility and satisfactoriness of his testimony in point of fact, and does not affect its com

AGENCY - FRAUD OF AGENT, LIABILITY OF UNINCORPORATED SOCIETY FOR. - By the rules of an unincorporated building society the directors were authorized to borrow money for the purposes of the society, but the total amount borrowed was at no time to exceed a certain limited amount. The plaintiffs lent 1001. to the society, paying it in the ordinary course to the treasurer. At the time of the loan the amount authorized to be borrowed by the directors had been largely exceeded. The treasurer having embezzled tho money, both the society and the directors denied their liability. The jury having found that the treasurer had been held out both by the directors and by tho society as a person authorized to receive the money, held, that the society as well as the directors were equally liable for the frauds committed by him in the course of his employment, and therefore both were liable to repay to the plaintiffs the amount advanced. Held, also, that the society were liable, although at the time the plaintiffs advanced the money the amount the directors were authorized by the rules to borrow had been largely exceeded. Barwick v. Joint Stock Bank, L.R., 2 Exch. 259; Mackay v. Commercial Bank of New Brunswick, L. R., 5 P. C. 394. C. P. Div., April 24, 1880. Charles v. Brunswick Permanent Building Society. Opinion by Coleridge, C. J., 42 L. T. Rep. (N. S.) 741.

NOTICE - - WHEN NOTICE OF MORTGAGE TO SOLICITOR NOT NOTICE TO CLIENT- EQUITABLE INTEREST.- A solicitor, who was the sole trustee of certain settled funds, advanced them to the tenant for life, and acted as his solicitor, on his purchasing therewith land, which was conveyed to the tenant for life, in his own name, in fee simple. There was no power under the settlement to invest the trust funds in the purchase of land. The land was subsequently mortgaged by the tenant for life, who received and appropriated the money advanced to C., the trustee of the settlement acting as solicitor for both mortgagor and mortgagee, and the mortgage containing absolute covenants for title in fee by the mortgagor. The land was subsequently mortgaged to several persons, subject to the prior mortgage or mortgages, but without notice of the trust. Held, that the circumstances were such as to repel the construction or imputation of notice to the solicitor-trustee being notice to C., and that he was entitled to his mortgage for the money intended to be thereby secured. Held, also (following Lewis v. Maddocks, 17 Ves. 48), that the interest of the person beneficially entitled in remainder under the settlement was an equitable estate or interest, that as such it was different from a mere equity, as distinguished in Phillips v. Phillips, 5 L. T. Rep. (N. S.) 655; 4 D. F. & J. 208, and following the last-named case, that being prior in date to the equitable interests of the subsequent mortgagees, it prevailed over them, notwithstanding they were purchasers for value without notice of the trust. Ch. Div., April 27, 1880. Cave v. Cave. Opinion by Fry, J., 42 L. T. Rep. (N. S.) 730.

TITLE — TO GOODS PLEDGED UNDER UNREGISTERED BILL OF SALE — BONA FIDE PURCHASER. — By tho terms of an unregistered bill of sale of stock-in-trade granted by a tradesman to the plaintiff to secure a loan, it was provided that the money was to be repayable on demand, but until default the grantor was to hold, make use of, and possess the goods assigned,

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