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INTER-STATE EXTRADITION - DUTY OF EX- It will not do to say that it devolves upon the execuECUTIVE FROM WHOM FUGITIVE

tive of North Carolina to enter the District of Columbia IS DEMANDED.

and demand one of its citizens, peremptorily, without

advising with the executive officer of the law in the DISTRICT OF COLUMBIA SUPREME COURT, OCT. 1880.

District with reference to the matter. That would be

to deliver over an equal jurisdiction into the keeping STATE OF NORTH CAROLINA V. PERRY.

of another jurisdiction. In the very nature of the case,

in the correlative position of the two sovereignIn the rendition of fugitives from justice under the United

ties, in subordination to a higher sovereignty, the conStates laws, the executives of the jurisdiction demand

sultation of the executive will of either jurisdiction is ing the fugitive and that where he is found stand coequal, and to exercise their authority in the

necessarily and unavoidably implied. This cannot be protection of the laws of their respective jurisdictions

abnegated by the executive called upon to perform the and of the citizens thereof.

duty, without postponing the power and guardianship The delivering up a fugitive by an executive from whom it of his equally high jurisdiction to the power making

is demanded is a discretionary duty to be exercised the demand. Now, that never entered into the scheme

within authority and right and to be governed by law. of union between the States — into a scheme of governAn executive from whom a fugitive is demanded can, in

ment in which equal jurisdictions occupy correlative determining whether such fugitive shall be delivered

positions under the Constitution of the United States. up, go no further than to examine whether in the affidavit or indictment transmitted by the demanding ex

These jurisdictions stand upon an equal plane. Each ecutive as a part of the record, a crime is substantially

is charged under the Constitution with the execution charged.

of legal power and legal conservation, in precisely the same degree.

That being the status of the power appealing, and of of North Carolina, for the delivering up of de

the power appealed to, what becomes the duty of the fendant charged to be a fugitive from justice from

executive in requisition, and in response to requisithat State. The requisition was made upon the chief

tions ? That duty is very clearly and simply manijustice of the Supreme Court of the District of

fested in the Constitution of the United States, and Columbia, where defendant was found, as chief ex

in the law giving effect to it. Where a crime has been ecutive of the jurisdiction. The opinion states the

committed, treason, felony, or other crime, and the facts.

party has been duly accused under the law of the CARTTER, C. J. If there is nothing more to be pre- jurisdiction, it becomes the privilege, and is made the sented in this case I will announce the conclusion that duty of the executive against whose laws the offense is I have been forced to with some of the reasons therefor. perpetrated, where the party has fled from justice, to

The governor of North Carolina, as the executive of demand of the authority of the co-ordinate jurisdicthat State, has made his requisition upon me as the tion, in which he has taken refuge, his person, to chief magistrate of this jurisdiction, for the delivery answer for the offense. That is his privilege under the of Samuel L. Perry, alleged to be a refugee from jus- Constitution, his duty under the Constitution and tice in that State.

under the laws, according to the mode manifested by In the discussion here by counsel, which has been the law for the exercise of it. conducted with great earnestness and learning, it has The Constitution further provides that where a party been claimed on one side, that in the exercise of the is charged with crime, and has fled before the process duty of responding to this requisition, the chief magis- of justice from the jurisdiction in which the crime trate should be permitted the widest discretion; that was committed, and taken refuge in another jurisdicthis is an appeal, under the Constitution, to the execu- tion, the jurisdiction where refuge is sought shall tive of this jurisdiction that simply advises his discre- render him up. Here is a correlative duty as much tion. On the other hand, it has been as earnestly enjoined upon the chief magistrate of the jurisdiction contended that the appeal to this jurisdiction is an appealed to as the right to demand is guaranteed to appeal to ministerial instrumentality alone, by which the jurisdiction demanding. There will be no differthe executive of this jurisdiction becomes the minis- ence of opinion how this should be exercised as a ter of the will of the jurisdiction making the requi- practical proposition. sition.

The question made here, and which has been proNow, I think both of these propositions are unallow- sented with a view to the enlightenment of my action able. And I have given to this question a great deal of in this matter, has been to work out the limitations on reflection, not only during the past two or three days, the duty. I repeat, there is no doubt this duty ought but in the discharge of this duty heretofore.

to be practically performed in good faith, and in politiHere are two jurisdictions independent of each cal and executive wisdom. But what instrumentaliother, exercising their respective functions under the ties may be resorted to to enlighten the understanding Constitution and laws of the United States. The ex- under the circumstances, complicates the question. ecutives of these jurisdictions sustain protective rela- And that brings me back to what I said before, that tions to the inhabitants and to the laws of their neither of the extreme positions in the argument in respective jurisdictions. And so emphatically is this the case is contemplated by the Constitution. It is the case, that the Federal sovereignty, either for the said on one side that this is a discretionary duty; and want of inherent power or of express power in the the meaning of that is according to the executive will Constitution, has failed to affix a sanction to it. The so should he act. Supreme Court of the United States has declared in Now that is so if the proposition means the exercise effect, in the case of Kentucky v. Dennison, that no of a discretion within authority — within right, as well sanction exists except a moral one.

as within power; for I am aware I have the physical Now, if this is evidence of any thing, it is evidence power to discharge this man or to hold him; and I am tbat in this respect the jurisdictions are co-equal in aware that the public would be remediless by the act, sovereiguty, co-equal in the guardianship which the temporarily, not ultimately, I hope, in the exercise of executor of the law is bound to exercise over its ad- such a judgment or determination as that. But the ministration, and over the rights of citizenship. These power to do a thing when enlightened by constitutional jurisdictions standing co-equal, in a correlative posi- and legal duty signifies the power to do it within the tion under the Constitution, are to exercise their limitations of that duty, and no higher power, no authority in the protection of the laws of their respecto capricious, no arbitrary power, the exercise of no mere ive jurisdictious, and of the citizens thereof.

physical power. It is a discretion revolving within the

a

enlightenment of the law, a discretion which considers technical requisites of the pleadings, or to inquire into the constitutional and legal proprieties of the subject matters of defense under it? I think not; and at this that is being acted upon; that is, power under the point you do come to the grave proposition in the disConstitution and the law, as it is before the executivo charge of executive duty, of entering into a co-ordicharged with the duty of rendition, or with the duty nate jurisdiction in one sense, a forum in the details of requisition.

of administrative justice. Tho Constitution never Now, inasmuch as this power is to bo exercised in contemplated this. The Constitution never contemthe light of the Constitution and under tho limitations plated the trausfer of the trial from the venue laid in of the law regulating its exercise, what authorities the indictment. may the executivo consult in its discharge? It is urged But you invade another principle; you invade judion one side that he may look at the seal to the certifi- cial inquiry, when you enter into it in its details; you cate, and if it is the great seal of the State, to the cer- make an administrative or executive officer discharge tificate of its chief magistrate, and he should then functions judicial. Now, while they both exist in the close his eyes and make the order. That his duty is a same person, as was claimed yesterday, and while in mere ministerial duty, the duty of a clerk, and not a this instance, and perhaps in all instances in connecduty involving the exercise of judgment and discre- tion with this subject, they may cohero in the same tion, and the responsibilities that belong to the chief officer, still the message sent to that officer is an execumagistrate, and involving the rights of the citizens tive message performing an executivo office, and to be of his jurisdiction. This cannot be; it matters not responded to in executive function alone. It appears what you call it, whether a ministerial duty or a quasi to me, I repeat, that to descend below the mere ascerjudicial function, the name under which it is to be tainment of whether the crime is substantially charged, recognized is absolutely immaterial to the enlighten- and enter into the discussion of its detail, in pleading, ment of duty, whether ministerial or quasi judicial, or in fact, is invading the jurisdiction where the crime within the limitations of the exercise of executive dis- is alleged to have been perpetrated, invading the juriscretion, surrounded by the restraints of the constitu- diction of judicial inquiry. tional provisions and the law; mind is to be exercised, I regret that the able jurists who have expended reason is to be brought into employment in the dis- judgment upon the subject, and for whom I have the charge of duty, and you cannot escape from it whether utmost regard, both the dead and the living, had not you will or not; and the term ministerial, in this sense, brought their minds to the work of this discriminameans to investigate as far as an intelligent discharge tion. These cases have been treated without thorough of the duty requires, to the extent of what is presented discussion upon this point, probably because the quesby the record at least.

tion was not presented as incisively as it is here. If it is true that the executive may not exercise Now, this being the case, what further may the exearbitrary will, with discretion accountable only to the cutive do? He can go no further in the indictment sentiments, or prepossessions, or prejudices, or judg- than to ascertain that a crime is substantially charged. ment (the higher quality of the executive), and if he I think it is substantially charged in this case --in is not, on the other hand, reduced to fingers simply, an executivo view of the subject, I think it is. I think an instrumentality in the hand of the executive of it is well certified. The requisition is in the ordinary the demanding jurisdiction, what is he to do? He is form, and attested properly, by the seal of the State to do within the limitations of the subject, just what and the seal of the court in which the indictment was the exercise of a rational power compels him to do, found. and to appeal to the Constitution and the law to find I see in this indictment matter, which if I were out what that is. Then, what does the Constitution charged with administration under the law, I would and the law say upon the subject, for the one is a inspect very closely; but not being charged with that repetition of the other? The Constitution provides in duty, it is sufficient for me to kuow that the crime is substance, that where treason or felony or any other substantially charged. It is certified here that tho decrime is committed within a State, the executive of fendant is a refugee from justice. That is the only that State may make requisition upon the executive information I have on the subject. of the State, or jurisdiction to which the party has I should not hesitate when the case was made, and fled, to recover him and make him answerable to the perhaps it is well enough for me to declare it now, as a law where he has offended.

rule of my action in that regard, what I have done How is the executive to know whether a party is heretofore, and what I shall do again, unless I am betcharged with a crime? He cannot learn it by looking ter enlightened than I have been, I must know that at the great seal of the State. The law-makers kuew the rendition is to be properly made. I will not in that. Congress understood that thoroughly well. He trust it to the hands of improper agents, knowingly. was under no obligation to respond to a capricious or This agent appears to be a gentleman, having taken sinister demand. The Constitution does not contem- on the type of the civilization of the age, and I am not plate that.

to presume that he is a brute. The legislative indication is unmistakable. He is to The requisition comes from the mildest of the old be informed by the indictment or the aflidavit which thirteen States, historically distinguished up to the is to be part and parcel of the record, and transmitted rebellion, as conservative, mild, deliberate and fraterunder due authentication to the jurisdiction of which nal in its administration. Among all the old thirteen, the party is demanded. It would be an idle provision the North State sustains this reputation, par ercellence. of the law to make the indictment a profert to the I am not to presume that a State is going to lend its executive for rendition, if he is not to look into it. It seal to outrage. That it cannot do. That would break was provided that it should be sent, because it was up the fraternity of States. known by the law-makers that the jurisdiction to I am aware that in the dark places of the Republio which it would be sent would have eyes and brains. men have been manacled and slaughtered by a misThat is the reason why it was put there. I have no guided, reckless mob, but these cases are exceptional. embarrassment over the question as to my duty to in- We are not to presume that a man is to be taken and quire whether the party is indicted, and whether for a sacrificed under the forms of law; and I, not being crime. That is not a matter of embarrassment at all permitted to presume it, shall take it for granted he in my judgment. The question is, when advised of

will be kindly transferred, if transferred under this the crime, how far you may go into its details in pro

requisition, to his place of trial, and fairiy treated after

ho is there. nouncing whether a crime is charged or not. Does it

The defendant will be ordered into the custody of predicate in the executive the right to inspect the the agent of North Carolina.

OF

claim was well founded it would defeat plaintiff's. NEW YORK COURT OF APPEALS ABSTRACT.

Such is not the case here. To the owner of goods in

jured in transportation several ways are open. He CORPORATION - LIABILITY OF TRUSTEE- PRESUMP- may pay the freight and sne for damages, or, refusing TION AS TO HOLDING OVER - ASSIGNMENT OF STOCK. to pay, submit to suit, set up his damages by way of (1) In this action plaintiff sought to hold defendant lia- counter-claim or bring a cross action. Gillespie v. ble for a debt contracted by a manufacturing corpora- Torrance 25 N. Y. 309; Spalding v. Vandercook, 2 tion organized under the general act, on the ground Wend. 432; Batterman v. Pierce, 3 Flill, 171; Dunham that he was a trustee of such corporation when such v. Bower, 77 N. Y. 80. And a payment of freight or a debt was contracted, and that the corporation failed to submission to judgment therefor would afford the carfile and publish the annual report required by section 12 rier no answer to the counter-claim or to the action. of the act (Laws 1848, chap. 40, etc). The debt was con- 1 Parsons' Marit. Law, 215; 3 Kent's Com. 225; Gris. tracted in 1874. The certificate of incorporation was wold v. New York Ins. Co., 3 Johns. 3:21. (2) Plaintiff filed in 1871, in which defendant was named as one of agreed to carry on the deck of his canal boat beans for the trustees for the first year.” There was no proof defendants from one port to another, and to furnish that defendant held over or acted as trustee after the sufficient material to cover them. He was warned by expiration of tbis term. Held, uot suflicient to make defendants' agent that if wet the beans would be inhim liable for debts contracted after the expiration of jured. He neglected to furnish covering although it this term. There is no presumption that the trustee rained during the time tho beans were on his boat's holds over after the expiration of his term. Van Am- deck being transported, and the beans were injured by burgh v. Baker, 21 Alb. L. J. 354. (2) In this case de- being wet. The consignees of the beans refused to fendant offered to show that in 1873 he filed a petition receive them by reason of their damaged condition, in bankruptcy, including in his assets his stock in the and they were stored on account of the boat. Therecorporation named, that he was adjudged a bankrupt, after, at the joint request of plaintiff and defendants, and that he assigned and delivered this stock to the the consignees took the beans and sold them as they assignee in bankruptcy, which the assignee continues to best could. Held, that the defendants were entitled hold, that he was discharged in bankruptoy, and that to recover for damages sustained by the injury done to since that time he has had nothing to do with the cor- the beans, less the freight. Judgment reversed and poration. Ileld, admissible as showing that defendant new trial granted. Schwinger v. Raymond et al., appelwas not in 1874 trustee, and that the offer was not too lants. Opinion by Danforth, J. broad. Judgment reversed and new trial ordered. [Decided Dec. 14, 1880.] Philadelphia and Reading Coal and Iron Co. v. Hotch

PARTNERSHIPkiss et al., appellants.

-DISSOLUTION - WHEN PARTY DEALOpinion by Finch, J.

ING WITH FIRM BOUND RY AGREEMENT OF DISSOLU[Decided Nov. 9, 1880.]

TION - VESTING ONE PARTNER WITH CONTROL COUNTER-CLAIM - WHEN ADMISSION OF PLAINTIFF'S LIQUIDATION - FACTOR. — It is well settled that while CLAIM DOES NOT SHUT OUT - CARRIER — LIABILITY

a factor to whom goods are sent for sale, without inFOR DAMAGE TO GOODS CARRIED.-(1) In an action for structions as to the terms of the sale, is at liberty to freight upon beans carried by plaintiff for defendants, sell at such time and upon such terms as he may deem the answer admitted that the amount claimed in the proper in the exercise of a sound discretion, yet he is complaint was due for freight, and set up as a counter- bound to obey the subsequent instructions of his princlaim injury to the beans by reason of negligence on cipal as to the sale, although he has made advances, the part of plaintiff in transporting them, to a larger

unless the principal, after reasonable notice, fail to pay amount than the freight, and claimed judgment for such advances. Marfield v. Goodhue, 3 N. Y. 62. Upon the difference. To this a reply was interposed. After

the dissolution of a firm it is competent for the partthe trial the defendants requested the referee to find wers to constitute one of their number a special agent the facts defendants deemed established and the con- for winding up the firm's affairs, and when this is done, clusions of law they supposed would follow, “and each parties who with notice of the arrangement deal in and every of the same and each and every part matters connected with the liquidation with the partthereof." The proposed conclusions of law were; ners not thus intrusted, are subject to the equitable

First, that the plaintiff is entitled to recover of the rights of the other partners. Robbins v. Fuller, 24 N. defendants $159.77; second, that the defendants are Y. 572. If the arrangement made comes to the knowlentitled to recover damages of the plaintiff, in the sum edge of the parties dealing with the firm, it is sufficient of $1452.10; third, the defendants are entitled to to put them on guard, and if they act in disregard of judgment against the plaintiff in a balance $992.33 such knowledge, they must be held responsible for conand their costs." The referee found, first, that plaint- sequences which ensue. In the case at bar, the firm of iff was entitled to recover the amount agreed for U. & Co. dissolved; defendant V., who was solvent, freight, stating it; and, second, that defendants were by arrangement between the partners taking charge of not entitled to recover for injury to their property. the liquidation and assuming the payment of all the Defendants excepted to the conclusions of law in the debts. U., another partner, who was insolvent, had report and to the referee's refusal to find the second nothing to do with the liquidation. Of these facts and third requests of defendants. Upon appeal the plaintiffs, who had as factors of the firm goods on sale, General Term held that the finding of the referee had knowledge. After the dissolution, V. notified upon the first clause in accordance with the request of plaintiffs not to sell the goods they held as factors, bethe defendant, and the omission of the latter to except low a specified price. In spite of this notice plaintiffs, thereto, entitled the plaintiff to maintain the judg- without notice to V., upon consultation with U., who ment. Held, erroneous. Take defendants' requests was employed by them as clerk, sold the goods at a less together and they asked that they should havo judg- price than the one specified. Ileld, that such sale was ment for the balance. And an exception to the con- without lawful authority. The cases of Napier v. Mcclusions of the referee was sufficient. The admission Leod, 9 Wend. 120; Gram v. Cadwell, 5 Cowp. 489, and by defendants that plaintiff was entitled to freight Porter v. Taylor, 6 M. & S. 156, distinguished. Judgdid not preclude their defense. The cases precluding ment reversed and new trial granted. Hilton et al. v, a defeuse when the claim is allowed, such as Davis v. Vanderbilt et al., appellants. Opinion by Miller, J.; Tallcott, 12 N. Y. 184; Bellinger v. Craigue, 31 Barb. Rapallo, Earl, and Finch, JJ., concurred; Folger, C. J., 534; Gates v. Preston, 41 N. Y. 113; Blair v. Bartlett, and Andrews and Danforth, JJ., dissented. 75 id. 150, rest upon a principle that if defendants' [Decided Nov. 30, 1880.]

PRACTICE - ORDER FOR PUBLICATION UNDER OLD eral statute conferring upon cities, eto., authority to CODE, $ 135 -- WHAT SUFFICIENT TO AUTHORIZE. – To erect and maintaiu water-works and to that end to authorize a judge to grant an order for the service of borrow money. The Constitution of Illinois provides a summons on an absent defendant, by publication un- that “no county, city, town, township, school district, der the 135th section of the old Code, it was sufficient or other municipal corporation, shall be allowed to if the affidavit presented to him contained allegations become indebted in any manner, or for any purpose, tending to show that efforts had been made to find the to an amount, including existing indebtedness, in the defendant within the State, and that he was not there. aggregate exceeding five per centum on the value ot In such a case the judge was vested with jurisdiction taxable property thereiu, to be ascertained by the last to pass upon the sufficiency of the proof of the facts assessment for State and county taxes previous to insubmitted to him, and if the proof satisfied him, neither curring such indebtedness." At the time the bonds his order nor the judgment based thereon could be im- were issued the debt of the city named was five per peached collaterally. Affidavits upon which such an cent of the assessed value of the property in the city order was granted showed that plaintiff placed in the as ascertained by the last assessment. The proceeds hands of the sheriff of New York county a summons- of the bonds were used in erecting city water-works. in the action, and received from him an official return Held, that the bonds were not valid against the city that he had used due diligence to find defendants in even in the hands of a bona fide holder for value withhis county, but was unable to do so. The affidavit out notice, and even if it was not practicable at the further alleged that plaintiff's attorney had himself time they were issued for a purchaser to ascertain what made inquiries to find defendants, which resulted in was the assessed value of the property of the city at information from a reliable source that they resided in the last assessment. This case differs from those cases another State. Such was in fact the case. Held, that where the bonds recited that they were issued in conthere was sufficient to sustain the order. Order formity with a statute which legally authorized them. affirmed. Belmont v. Coenen et al., appellants. Opin- See Town of Colona v. Eaves, 92 U. S. 490; Orleans v. ion by Rapallo, J.; Folger, C. J., and Danforth, J., dis- Pratt, 99 id. 682, where it is said that “where the sented.

bonds on their face recite the circumstances which bring [Decided Oct. 5, 1880.]

them within the power, the corporation is estopped to deny the truth of the recital.” Knox V. Aspinwall, 21

How. 542; Kinnicut v. Supervisors, 16 Wall. 464; UNITED STATES SUPREME COURT AB

County of Moultrie v. Savings Bank, 92 U. S. 631; STRACT.

Marcy v. Township of Oswego, 92 id. 637. A recital

tbat the bonds were issued under the authority of the FRANCHISE - DOES NOT INCLUDE IMMUNITY FROM statute, and in pursuance the city ordinance, did TAXATION - RAILROAD.-A decree in chancery ordered not, necessarily, import a compliance with the Constiin case another sale should not be made that commis- tutiou. Judgment of U. S. Circ. Ct., S. D. Illinois, sioners might sell “ all the property and franchises of” affirmed. Buchanan, plaintiff in error, v. City of Litcha railroad company. M., for himself and others, made field. Opinion by Harlan, J. an offer for the railroad, in which he said, “I expect a [Decided Nov. 22, 1880.] full and perfect title to the road, including the State's interest, franchises and privileges.” This proposition

REMOVAL OF CAUSE — UNDER ACTS OF 1866 AND 1867 was accepted by the commissioners and the sale

- WHAT IS FINAL TRIAL OR HEARING.-In an action in reported to the court, was confirmed by decree, which

a State court begun in 1868 for rents and profits, and a treated the sale as one of the “property and fran

reconveyance of real estate held by appellants here, chises” of the company, and directed the commis

there was but a single issue between the parties, to wit, sioners, “in conformity with the previous decrees,"

whether the appellants were the absolute owners of to “make title to the purchasers according to the terms

the property in dispute, or whether they held the title of the contract and former decrees of this court."

in trust for the appellee here. This issue was heard Held, that the purchasers acquired title only to the

and decided in favor of the appellants in the common property and franchises of the company, and that an

pleas where the action was brought. The suit was then immunity from taxation would not, under the rule in

taken by appeal to the Supreme Court of the State, Morgan v. Louisiana, 93 U. S. 217, pass to the pur

where it was again heard and a decision rendered in chasers. The term “franchises" is not synonymous

favor of the appellee here, and the cause was remanded with “rights, privileges and franchises,” "rights,

with a direction to take an account between the parpowers and privileges "and the like. This case is dis

ties. In accordance with this decision the case was tinguishable from Humphrey v. Pegues, 16 Wall. 244,

referred to a master, but before his report was filed, 80 where it was held that an immunity from taxation did

as to enable the court of Common Pleas to make a final pass under a transfer of "all the powers, rights and

decree, appellants, in 1874, filed a petition for a removal privileges" of a railway corporation. Judgment of

to the Federal court under the act of 1866, U, S. R. S., Tennessee Sup. Ct. affirmed. East Tennessee, Virginia

$ 639, subd. 2. Subsequently they filed a petition for and Georgia Railroad Co., plaintiff in error, v. Hamblin

removal under the act of 1867, U. S. R. S., $ 639, subd. County. Opinion by Waite, C. J.

3. In both these acts it is provided that the petition [Decided Nov. 29, 1880.]

shall be filed “before the trial or final hearing of the

suit.” Held, that the petition for removal was not in MUNICIPAL BONDS -- ISSUE IN EXCESS OF CONSTITU- time. The hearing of this case, originally begun in TIONAL LIMIT OF MUNICIPAL LIABILITY RECITALS the Common Pleas, was transferred by the appeal to IN BONDS - BONA FIDE HOLDER — ESTOPPEL.—Bonds the Supreme Court. That court, on the appeal, had issued by a city in Illinois each contained this recital: the right to re-examine what had been done in the “This boud is issued under authority of an act of the Common Pleas. In effect, it took up the case on the general assembly of the State of Illinois, entitled 'An hearing begun below. If on the appeal the decree act authorizing cities, incorporated towns, and villages below had been reversed and the cause sent back for a to construct and maintain water-works,' approved rehearing, then the final hearing, for the purposes of April 15, 1873, and in pursuance of an ordinance of the the statutes under consideration, would not have begun said city of Litchfield, No. 184, and entitled 'An ordi- until the court below had again entered upon the deternance to provide for the issuing of bonds for the con- mination of the cause. Then the reversal would have struction of the Litchfield water-works,' approved perfected the right to a second hearing in the court of December 4th, 1873.” The act referred to was a gen- | original jurisdiction, and, under the rule stated in

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Vannever v. Bryant, 21 Wall. 43, a demand for the Wall. 636; Hannab v. Swarner, 8 Watts, 11. The
transfer might properly be made. Here, however, the question of delivery must be left as a question of fact
Supreme Court granted no new hearing. It reversed to the jury upon the whole evidence in the cause. The
what had been done below, and then proceeded, under court may instruct the jury to find a delivery, when
the original submission, to decree on the merits. It the whole testimony shows a state of facts from which
thus continued the hearing under the original submis- delivery is a positive inference of law. But where
sion, decided the controversy so for as the primary there is conflicting testimony, the case should be left
rights of the par were concerned, and through the to the jury, with proper instructions. Lindsay V.
Common Pleas sent the case to a master to settle the Lindsay, 11 Vt. 6:21; Murray v. Starr, 2 B. & C. 82.
details of the final decree. No power was given the Jones v. Swayze. Opinion by Van Syckel, J.
court below to rehear the case, but only to proceed in

MUNICIPAL CORPORATION - IRREGULAR EXERCISE due course with the hearing that had been begun until

OF POWER IN ISSUING BONDS DOES NOT INVALIDATE the inquiry as to the whole subject-matter was com

BONDS - RECITALS IN DEED DO NOT ESTABLISH DEED. pleted. Judgment of U. S. Ciro. Ct., W. D. Pennsyl-(1) Where a municipal corporation had the right to vania, affirmed. Jifkins v. Sweetser. Opinion by

borrow money for a specific purpose on bonds running Waite, C. J.

for twenty years, and by mistake issued bonds for the [Decided Nov. 22, 1880.]

same purpose under another grant of authority, such

bonds running for a less period, held, that the bonds so NEW JERSEY SUPREME COURT ABSTRACT. issued were legal obligations. An irregularity iu the JUNE TERM, 1880.*

exercise of a granted auth ity will not illegalize the

transaction. If the city officials were mistaken with CONSTITUTIONAL LAW – ACT EMBRACING LIMITED

respect to the mode in which the power was to be exerDISTRICT WHEN NOT LOCAL- FISHERIES.-The Con- cised, the mistake was of no consequence if they had stitution of New Jersey provides that " no general law Township of Rock Creek v. Strong, 6 Otto, 271, it was

the right to effect the same end in another mode. In shall embrace any provision of a private, special or local character.” Held, that a statute regulating the

decided that provisions respecting the rate of interest fisheries throughout the State was not unconstitu

to be paid by town bonds, and the length of time tional with respect to a provision making penal the use

which they are to run, are directory and not of the of nets at certain times in particular counties, such

essence of the power. For illustrations of the applicounties embracing all the waters within the jurisdic

cation of the same rule, see also, Gilchrist v. Little tion of the State. A law is not necessarily of a special

Rock, 1 Dill. 261; Mott v. United States Trust Co., 19 or local character because it prohibits the doing of a

Barb. 569; Northwestern Mut. Ins. Co. v. Overholt, 4 thing in a certain locality. If this were so, a law regu

Dill. 287. In De Voss v. Richmond, 18 Gratt. 338, the lating the use of the public roads of the State, and

city council were authorized to borrow money and imposing penalties for infringement, would be illegiti- issue bonds, and it was ordered to insert the consideramate, as such a law would be local, in the sense that it

tion on the face of certain bonds. This was not done, prohibited the doing of certain acts in particular

but the instruments nevertheless were held valid, the localities, to wit, within the bounds of the public high- court saying that such direction was not a limitation ways. One cannot see how a law can be said to have

on the power granted. (2) A recital in a bond is not an a special or local character, that does not confer either estoppel to the obligor setting up that it is not his a particular benefit, or does not impose a particular deed. The legal rule that makes the statements of a burthen upon the inhabitants of a designated place or

sealed instrument incontestable by the party to it, district. It is plain that the law in question is free

grows out of the circumstance that such statements from such characteristics. Its purpose is to regulate

are the deliberate utterances of such party, and consethroughout the State a public interest. The operation quently such rule has no place until it is settled of the statute is as broad as the subject to be regulated,

whether the given instrument be his deed. The refor it extends its adjustments to all the waters under citals, as against adverse proofs, cannot help to estabthe dominion of the State, and when it imposes the

lish the legal existence of the specialty. If a married restrictions in the clause under criticism, such bur

woman should execute a conveyance declaring in it in thens are laid not only upon the inhabitants of the

never so solemn a form that she was a seme sole, no one two counties that are mentioned, but upon all the citi

would pretend that the fact of her coverture could not zens of the State. Doughty v. Connover. Opinion by habitants of Winslow, 6 Vroom, 437, where it was

be shown. The question is settled in Hudson v. InBeasley, C. J.

directly ruled with respect to the doctrine of estoppel DEED - DELIVERY OF, TO THIRD PERSON FOR USE OF

by reason of recitals in sealed instruments, that “the GRANTEE - WHEN EFFECTIVE — WHEN QUESTION FOR JURY.-A delivery of a deed to a third person for deed as the act of the party is admitted.” See, also,

principle is applicable only whero the existence of the the use of the party in whose favor a deed is made, in accord with this ruling: Chisholm v. Montgomery, where the grantor parts with all control over the deed, 2 Wood's C. C. 594 ; Starin v. Genoa, 23 N. Y. 439; makes the deed effective from the instant of such de

Fairtitle v. Gilbert, 2 T. R. 169; Bigelow on Estop., livery; the law will presume, if nothing appear to the 283; New York and Oswego R. Co. v. Van Horn, 57 contrary, that a man accepts what is for his benefit.

N. Y. 474; Shapley v. Abbott, 42 id. 443. Singer ManuGarnons v. Knight, 5 B. & C. 671; Zenos v. Wickham,

facturing Co. v. City of Elizabeth. Opinion by Beas106 E. C. L. 381; S. C., on appeal, 108 id. 435, and on

ley, C. J.
final appeal, id. 861; Church v. Gilman, 15 Wend.
656; Ernst v. Reed, 49 Barb. 367; Brown v. Austen, 35

NEW JERSEY COURT OF CHANCERY ABid. 342. The statement in 2 Washb. Real Prop., 581,

STRACT.
that “the better opinion seems to be that no deed can
take effect as having been bona fide delivered until

MAY TERM, 1880.*
such act of delivery has been assented to by the
grantee,” is not supported by the authorities cited, ATTORNEY - LIABILITY
viz. : Maynard v. Maynard, 10 Mass. 458; Jackson v. VESTIGATING TITLE - LIABILITY FOR INVESTMENT OF
Dunlop, 1 Johns. (as. 114; Stephens v. Buff. & N. Y. MONEY.--A bill in equity will not lie against an attor-
R. Co., 20 Barb. 332. See, also, Young v. Guilbeau, 3 ney for damages for negligence in investigating a titlo,
* To appear in 13 Vroom's (42 N. J. Law) Reports.

Appearing in V Stewart (32 N. J. Eq.) Reports.

FOR

NEGLIGENCE

IN

IN

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