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benefit of the mortgagor and mortgagee, thus tending inevitably to hinder and delay such creditors. Herman Chat Mortg. 227-236; Mortg. of Merchandise (Pierce), § 33 et seq., § 155; Wiley v. Knight, 27 Ala. 336; Com. Bank Selma v. Brewer, 71 id. 574; Jones Chat. Mortg., § 382 et seq.; Lund v. Fletcher, 39 Ark. 325; S. C., 43 Am. Rep. 270; Orton v Orton, 7 Or 478; 33 Am. Rep. 717; Cheatham v. Hawkins, 80 N. C. 161; Robinson v. Elliott, supra; Constantine v. Twelves, 29 Ala. 607.

A mortgage with such a power of sale, by which the mortgage debtor is enabled to sell at his option and appropriate the proceeds of sale to his own use, is, as we have said above, virtually a conveyance "made in trust for the use of the person making the same," within the meaning of the statute, and this feature of itself stamps the transaction with invalidity. Code, 1876, § 2120.

In construing this statute this court said in Reynolds v. Crook, 31 Ala. 634, that it is essential to the validity of every trust conveyance intended as a security that its "whole purpose" should be the devotion of the property bona fide to the indemnification of the creditor, and that "if a part of its purpose is that it shall avail or be reserved for the case or favor of the grantor it is void as to creditors." Miller v. Stetson, 32 Ala. 161. The principle is essentially akin to that which pronounces every conveyance void which reserves a power of revocation in the grantor. The power to sell the mortgaged property and appropriate its proceeds does not differ in effect from a reserved power to revoke in whole or in part.

In Riggs v. Murray, 2 Johns. Ch. 565, it was said by Chancellor Kent in a case of this character that the grantors had been "sporting with the property as their own," and the conveyance carried with it a necessary inference of a purpose to hinder, delay or defraud creditors. Such a power of revocation was said to be fatal to the instrument, and to "poison it throughout." It was very long ago held that a reserved power to mortgage, or to sell as the grantor might deem fit, was tantamount to a power of revocation, and therefore vitiated a conveyance for fraud. Tarback v. Marbury, 2 Vt. 510; Mortg. Mer. (Pierce), § 154 et seq. All cases of this general class come within the evils intended to be reached by Twyne's case, where it was said that "fraud is always apparelled and clad with a trust, and trust is the cover of fraud."

The authorities are numerous in support of these views. The Supreme Court of North Carolina, in discussing the subject in Cheatham v. Hawkins, 76 N. C. 335, say: "The power to sell was the power to destroy, and the sale was the destruction and extinction of the property. If there were other unsecured creditors at the time of this assignment and no other property of the debtor than that conveyed in the mortgage out of which the creditors could make their debts, the fraudulent intent would seem to be irrebuttable. A clear benefit is secured to the debtor, and a clear right is withheld from the creditor beyond what the law permits. An assignment cannot cover up and preserve the property for the debtor's use, or protect it from the remedies and demands of the creditors. There being no evidence to rebut the "presumption of fraud raised by the law," the mortgage was declared by the court to be void for fraud.

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In the case of Tennessee National Bank v. Ebbert, 9 Heisk. (Tenn.) 154, a similar mortgage was decided to be void because it afforded such "facilities for fraud " as to stamp it as wanting in legal good faith on the plain principle," as was said, 'that every reasonable man is presumed to intend the probable consequences of his own acts. And besides," it was added, there is clearly a benefit contracted for to the grantors on the face of the deed and a prejudice to the rights of other creditors."

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In Collins v. Myers, 16 Ohio, 547, the court declared that" to hold that such a mortgage was valid would furnish a complete shelter under which a man could carry on trade for his own benefit completely protected against the payment of his debts, and placed wholly beyond the reach of creditors." The property was said not to be "held by the mortgage, but by the will of the debtor, because if the debtor sees proper to dispose of it he has the power under the mortgage. For these reasons such a mortgage on his stock of merchandise was decided to be "void as against the policy of the law."

In Mississippi such conveyances have been beld void, among other reasons, "because of their susceptibility of abuse, by reason of the ease with which they may be employed for wrong purposes, to the injury of the creditors." Joseph v. Levy, 58 Miss. 843.

In more than one case they have been held void on the ground that they throw open a wide door for the easy commission of fraud, and are therefore contracts against public policy. Phelps v. Murray, 2 Tenn. Ch747; Lund v. Fletcher, 39 Ark. 325; S. C., 43 Am. Rep. 270.

A large number of other adjudications on this subject could be cited giving forcible reasons in support of the doctrine that a reservation to the mortgagor of a discretionary power of sale under the mortgage, renders the mortgage fraudulent as against the creditors of the mortgage debtor. When this fact is made to appear, the better view seems to us to be that the conveyance is void without regart to the existence of any actual intent to defraud. As forcibly observed by a recent author, "With the enactment of statutes granting a most liberal exemption of personal property, and the abolishment of laws for the arrest and imprisonment of debtors, a creditor has but a naked claim against the property of his debtor, and it should receive the most effective support, and every rule calculated to prevent a debtor from secreting or covering property should be sustained with courage and energy." Herman Chat. Mortg. 255.

We are not to be understood as intimating in this opinion that a mortgage of merchandise would be rendered conclusively invalid where the mortgagor is in good faith left in possession of the goods, with power to sell for the exclusive use of the mortgagee, holding the proceeds of sale for his benefit. In such cases he may well be deemed the mere agent of the mortgagee acting for him and in his behalf. Mortg. Merch. (Pierce) $$ 46, 49, 53; Conkling v. Shelley, 28 N. Y. 360; Fisk v. Harshaw, 45 Wis. 665; Tickner v. Wiswall, 9 Ala. 305.

Under the influence of these principles, it needs no further argument to show that the mortgage executed by Crumbey Brothers to the Renfro Brothers, on the 25th day of December, 1878, was fraudulent and void as against the appellants and other creditors of the mortgagors; that the chancellor erred in not so holding. The decree dismissing the bill filed by appellants is reversed, and the cause is hereby remanded, that further proceedings may be had in the Chancery Court, in accordance with the views expressed in this opinion.

[See ante p. 328; 32 Am. Rep. 621; 34 id. 265; 31 id. 178, note; 43 id. 270, 596; 39 id. 160; 30 Eng. Rep. 808. -ED.]

NEW YORK COURT OF APPEALS ABSTRACT.

NEGOTIABLE INSTRUMENT- WHAT NOT-PAYMENT CONDITIONAL.-C. contracted with defendant to fur nish and set the brown stone work for a certain house, which was in course of erection by defendant. For the purpose of procuring a credit from plaintiff for the

stone necessary, C. drew an order on defendant requesting him to pay plaintiff or order $650 when the brown stone work was "topped out," $400 when the stoops of the houses were set, and $375 when the work was completed. This order was accepted by defendant, and thereupon plaintiff furnished stone to C., some or all of which was used in the performance of the contract; he so far performed that the first installment became due and was paid to plaintiff by defendant. C. failed to perform the residue of contract, and it was cancelled by him and defendant, the latter finishing the work at his own expense. In an action to recover the other two installments, held, that plaintiff was not entitled to recover, that the order was not a bill of exchange, because it was not absolutely payable. Cook v. Satterlee, 6 Cow. 108; Seacord v. Burling, 5 Denio, 444; Van Wagner v. Terrett, 27 Barb. 181; Prindle v. Caruthers, 15 N. Y. 426. It was payable only upon condition that the work should be done as specified, and might never become payable. It cannot therefore have the force or effect of a bill of exchange. It does not purport upon its face to be founded upon any consideration, and none can be presumed. Hence it was necessary for the plaintiff to prove the consideration upon which it was given, and that brought into the case all the circumstances under which it was given. It could operate only as an assignment to the plaintiff of what should become due to C. from the defendant, or as a contract on the part of the defendant to pay the plaintiff the sums mentioned in the order upon the terms specified. As to the two sums last mentioned in the order, it never operated as an assignment, because C. never earned them, and they never became due. As a contract it never made the defendant liable to pay the two sums, because it is clear that he was not to be liable to pay those sums until C. did the work, and then he was to pay the two sums which would otherwise be payable to C. to the plaintiff. The defendant limited the conditions upon which he would make payments, and those conditions were never performed. Duffield v. Johnston. Opinion by Earl, J. [Decided June 24, 1884.]

AGENCY-UNDISCLOSED PRINCIPAL-LIMITATIONSTRIAL-PARTY ENTITLED TO BENEFIT OF WHAT EVI

DENCE DISCLOSES.-When a broker purchases property without disclosing the name of the principal for whom he acts, he becomes liable personally for the purchase-price, and is entitled to collect such price from the principal, and the latter can relieve himself from such liability only by showing payment to the vendor, or a release for a good and valid consideration from the broker. Cobb v. Knapp, 71 N. Y. 348; Seymour v. Minturn, 17 Johns. 170. As affecting such liability, it is immaterial whether the broker disclosed to the vendor the fact that he was acting as agent for some principal or made the purchase ostensibly as principal. The statute of limitations begins to run against a claim by the broker from the time of the purchase, the same as if he had himself been the vendor. Considerant v. Brisbane, 22 N. Y. 389. In the absence of objections to the sufficiency of the complaint it is the duty of the trial court to give the plaintiff the benefit of any cause of action established by the evidence, and upon appeal this court will consider the cause of action disclosed by the evidence, without regard to any objections to the sufficiency of the pleadings, which were not made in the court below. Southwick v. First Nat. Bank, 84 N. Y. 420; Cowing v. Altman, 79 id. 167; McGoldrick v. Willits, 52 N. Y. 612. Knapp v. Simon. Opinion by Ruger, C. J.

[Decided June 10, 1884.]

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LIBEL AND SLANDER DOCTOR AND CORONER. - The plaintiff, describing himself in his complaint as both physician and coroner, alleged that defendant printed and published in its newspaper the following article: "A Narrow Escape from being Buried Alive. A well-to-do farmer found stiff and cold by the road side. He is supposed to have been frozen to death. A coroner takes charge of the case and impanels a jury. The inquest interrupted by a physician who declares the man to be alive. Animation restored." It appears from the complaint and evidence that the plaintiff was by profession a physician and by office a coroner. In the article complained of he is referred to in the latter capacity only, and nowhere can be found a word or suggestion from which the most astute inquirer could infer that he had any other than that public occupation. As the language used did not relate to his profession in any way, so as to his office of coroner, it exhibits on his part a prompt and efficient performance of its duties, and it is impossible to see how any person reading it could ascribe to the words used a defamatory meaning, or without the innuendo, apply them to the plaintiff in his professional capacity, and there is no evidence that such application was intended. The case of Sanderson v. Caldwell, 45 N. Y. 398, is cited by the respondent, but it is not any authority against this view. There the plaintiff was not only in fact a lawyer engaged in the practice of his profession, but the libel spoke of him as collecting claims of soldiers and sailors against the government-a professional actand it was thought to be a just inference that the injurious words used by the defendant related to him in that character. Here it is quite otherwise. There is nothing to show that the words were so spoken of the plaintiff. They do not charge him with doing any act whatever as a physician, nor were they spoken of him in his business as such. In Oakley v. Farrington, 1 Johns. Cas. 130, the plaintiff was a justice of the peace, and sued the defendant because the latter called him a "damned rogue." In Van Tassel v. Capron, 1 Den. 250, the plaintiff was a magistrate also, and sued because the defendant had charged him as one who had combined with others to cheat strangers. In the first the plaintiff was nonsuited, and in the last a demurrer to the complaint was sustained for the reason that the words did not touch the plaintiff in his office. So in the case before us. The plaintiff was not spoken of as a physician; he was not described as acting as such on the occasion in question, and if we assume with the plaintiff's counsel as I cannot in fact concede-that the language of the defendant could in any connection be deemed actionable, it is not so here. Purdy v. Rochester Printing Co. Opinion by Danforth, J. [Decided June 24, 1884.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

PATENT-EARLIER PUBLICATION.-A patent is not invalidated by statements in an earlier publication, unless those statements are full and definite enough to inform those skilled in the art how to put in practice the invention now patented. Betts v. Menzies, 10 H. L. Cas. 117; Neilson v. Betts, L. R., 5 H. L. 1; Seymour v. Osborne, 11 Wall. 516, 555; Cawood Patent, 94 U. S. 695, 703, 704; United Nickel Co. v. Anthes, Holmes, 155; Same v. Manhattan Brass Co., 16 Blatch. 68. Cir. Ct., D. Mass., July 25, 1884. Hocd v. Boston Car Spring Co. Opinion by Gray, J.

*Appearing in 21 Federal Reporter.

CARRIER GENCE.-(1) Several connecting carriers, having entered into certain contract arrangements for continuous transportation on through bills of lading, at settled rates of compensation, providing that each line should be responsible alone for its acts or omissions, do not thereby become liable as partners for the undertakings, representations, or misconduct of the carrier who receives merchandise from a shipper. It was the point directly involved and decided in Insurance Co. v. Railroad Co., 104 U. S. 146. The defendant's obligations were therefore those of an intermediate carrier, arising out of the implied contract springing from receipt of the goods. These bound it for safe carriage over its own line, and for delivery or tender to the next carrier beyond, within reasonable time. Insurance Co. v. Railroad Co., supra; Empire Co. v. Wallace, 18 P. F. S. 302; Myrick v. R. Co.. 107 U. S. 102; S. C., 1 Sup. Ct. R. 425; Railroad Co. v. Manfg. Co., 16 Wall. 318; Am. & Eng. R. Cas. 271. It must not be overlooked that the question here is not (as in Railroad Co. v. Manfg. Co., 16 Wall. 318) whether the defendant remained liable under his obligations as carrier to the date of loss, but whether he was guilty of willful fault, and consequently forfeited the exemptions in the bill of lading, and thus became responsible for the consequences of the fire. That he was not guilty of such fault seems reasonably clear. (2) Where cotton was delivered to a carrier to be transported from Memphis, Tennessee, to Woonsocket, Rhode Island, upon through bills of lading, exempting liability for fire, issued by the receiving carrier in pursuance of such arrangement between the connecting carriers, and the cotton was delayed at Norfolk by reason of a block caused by accumulation of freight on the line intended to convey it therefrom, and was stored in the defendant's warehouses, where it was burned, held, that the company so storing the cotton was not bound to send the cotton forward' by other lines, and was not liable for the loss. The fact that the company had effected an insurance on the cotton is unimportant. Cir. Ct., E. D. Penn., June, 1884. Deming v. Norfolk. Opinion by Butler, J.

CONNECTING-LOSS BY FIRE NEGLI

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CLAIM TO JUDGMENT.-(1) Where a debtor who is insolvent transfers all his property to a single party, and under such circumstances that it is obvious that there was no intention of merely giving security, and with the idea of paying the debt and reclaiming the property, such transfer, no matter by what form of instrument, whether that of a chattel mortgage or otherwise, and whether made to the creditor directly or to a trustee, must be treated as a general assignment, and for the benefit of all creditors. This question was fully considered by this court in the case of Martin v. Hausman, 14 Fed. Rep. 160, and after a full examination of the statutes of Missouri and the decisions of its Supreme Court, it was answered in the affirmative. The opinion in that case was written by Judge Krekel, and was concurred in by my predecessor, Judge McCrary. That opinion was followed in Dahlman v. Jacobs, 15 Fed. Rep. 863, in Kellogg v. Richardson, an unreported case in the Western District, and also, I am informed, in other cases in this court, as well as in some of the District Courts of the State. While if this was a new question, I confess my own conclusions would be different, and in harmony with the decisions of National Bank v. Sprague, 20 N. J. Eq. 28: Farwell v. Howard, 26 Iowa, 381; Doremus v. O'Harra, 1 Ohio St. 45; Atkinson v. Tomlinson, id. 241; and other cases cited by counsel for defendants; yet I think there has been such a course of decision in this Circuit as to establish the rule in the United

States courts for this State in accordance with the opinion in Martin v. Hausman, supra, and until there be some authoritative construction of the statute by the Supreme Court of the United States, or of the State, I shall follow the rule laid down as above. (2) Federal courts have authority to take possession of property so assigned, and dispose of it in accordance with the provisions of the State statute; and where a form of procedure is prescribed by the State statute, which may be pursued by the State courts of general jurisdiction, it may also be pursued in the corresponding Federal courts. Strong v. Goldman, 8 Biss. 552; 2 Story Eq. Jur., § 1057; Lackland v. Garesche, 56 Mo. 267. (3) It is insisted that the plaintiffs, being only general creditors, and not having as yet reduced their claims to judgment, have no standing in a court of equity to enforce such claims as against these transfers. The opinion in the case of Dahlman v. Jacobs, supra, sustains this view, but the decision there was subsequently set aside in the same case. 16 Fed. Rep. 614. True, in this latter opinion nothing is said as to the specific ground upon which the former was based, so that opinion was not expressly overruled; but in view of the decision of the Supreme Court of the United States in Case v. Beauregard, 101 U. S. 688, I am constrained to rule against the defendants on this proposition. In that case it was decided that "whenever a creditor has a trust in his favor, or a lien upon property for the debt due him, he may go into equity without exhausting his remedy at law." The first clause of this decision covers this case. The plaintiffs seek to charge the defendants, holding certain property as trustees for them and other creditors. The gravamen of the suit is the enforcement of a trust. Strike that out and nothing is left. And in accordance with that decision, it must be held that a general creditor may, without reducing his claim to judgment, proceed in equity to charge one holding the property of his debtor received under such an assignment or transfer as a trustee for the benefit of creditors. Ins. Co. v. Transp. Co., 10 Fed. Rep. 596; Same v. Same, 13 id. 516; Batchelder v. Altheimer, 10 Mo. App. 181; Holt v. Bancroft, 30 Ala. 193; 1 Story Eq. Jur., §§ 546, 547. Cir. Ct., E. D. Mo., July 25, 1884. Clapp v. Dittman. Opinion by Brewer, J.

SHIP AND SHIPPING CHARTER-PARTY — BILL OF LADING-EMBEZZLEMENT BY MASTER-FRUIT CARGO

GOLD COIN-USAGE OF TRADE.-A vessel was specially chartered for a lump sum to make a voyage from Baltimore to the Bahama islands, the charterers to furnish "ballast out and a cargo of fruit back." A sum in gold coin was given by charterers to the master, for which he gave a bill of lading, "freight as per charter-party." On the voyage out the master left the ship, having embezzled the money. Held, that under the charter-party the owners did not contract for the safe carriage of gold coin, and that the bill of lading was given without authority. Held further, that the alleged usage in the fruit trade with the Bahamas to send out in the vessel gold coin with which to purchase the return cargo was not proved to be such a usage as would bind a specially chartered vessel as carrier of the gold, and that in this case the master received the gold as bailee of the charterers. Dist. Ct., D. Maryland, July 5, 1884. Hart v. Leach. Opinion by Morris, J.

TAXATION--SHARES OF NATIONAL BANK-ACT OF 1883, CH. 345-VALIDATING LEGISLATION.-(1) The Legislature of a State cannot validate a tax which is prohibited by the laws of the United States; but it is competent for it to sanction retroactively such proceedings in the assessment of a tax as they could have legitimately sanctioned in advance. (2) In the act of 1881, ch. 271, Laws of New York, the fatal vice was the

denial of an opportunity to those assessed to be heard and permitted to obtain the deductions and corrections allowed by the general system of assessments. Albany City Nat. Bank v. Maher, 9 Fed. Rep. 884. (3) The general rule has often been declared that the Legislature may validate retrospectively any proceedings which they may have authorized in advance; and it is immaterial that such legislation may operate to divest an individual of a right of action existing in his favor, or subject him to a liability which did not exist originally. In a large class of cases this is the paramount object of such legislation. (4) If it was within the power of the Legislature to provide for the collection of a tax by a system which requires the tax-payers to pay in advance of an opportunity to be heard, but permits them to have a subsequent hearing and to obtain restitution, if restitution ought to be made, the validating act was constitutional. Undoubtedly it is beyond the power of the Legislature to validate the acts of taxing officers of a character which cannot be justified as an exercise of the taxing power; as where a part of the property in a taxing district should be assessed at one rate and a part at another, or if persons or property should be assessed for taxation in a district which did not include them. And it is stated in general terms, by a text writer of high authority, that a validating act cannot cure the illegality of an assessment made without any notice to the persons interested. Cooley Taxn. 227, 228. The case of Marsh v. Chesnut, 14 Ill. 223, and Billings v. Detten, 15 id. 218, are referred to as sustaining the proposition. These were cases where the curative act was held bad for the same reason that the curative act of 1881 was held to be nugatory by this court, because it did not provide for an assessment upon notice to the taxpayer, and thus perpetuated the vice of the original assessment. The present act, as has been said, is framed to obviate this objection. No adjudged case has been cited by counsel or has met the attention of the court where such an act has been considered. It is asserted in many cases that notice and an opportunity for hearing of some description are matters of constitutional right; but it has nowhere been declared that it is indispensable that the hearing should be one in advance of the collection of the tax. The operation of the present act is to preserve substantially to the tax-payers the right of which they were originally deprived, to give them an opportunity to question the justice of the assessment, and to restore to them the sums which were illegally collected of them. In view of the large and almost unlimited discretion which resides in the Legislature to regulate the mode and conditions of taxation, it is believed to be valid and effectual to legalize the proceedings here. (5) In judicial proceedings due process of law requires a hearing before condemnation, and judgment before dispossession; but when property is appropriated to or under the power of taxation, different considerations from those which prevail between individuals obtain. It is not indispensable that a hearing be secured before assessment or before collection of the tax; but it is sufficient if reasonable provision is made for a hearing afterward, a correction of errors, or a restitution of the tax or part of a tax unjustly imposed. Cir. Ct., S. D. New York, July 23, 1884. Williams v. Board of Supervisors of Albany County. Opinion by Wallace, J.

REMOVAL OF CAUSE-ACT OF 1875-CITIZENSHIPCONTROVERSY.-Where all the parties on the one side are residents of different States from any of the parties on the other side, a suit containing but a single controversy may be removed by either one of the plaintiffs or defendants, under the second clause of section 2 of the act of 1875; or by all the plaintiffs or

by all the defendants jointly under the first clause. (2) The natural import of the language of one part of a statute should not be narrowed by construction though it overlap in part the provisions of another part of the same statute, where both will still have a distinct and exclusive purpose to subserve. (3) Only the first clause of the above section embraces cases of a single plaintiff and defendant; only the second clause embraces cases in which removable and non-removable controversies are joined in the same suit; both clauses cover cases having several plaintiffs or defendants, and only a single controversy, and that a removable one. If the point raised by this motion has not been expressly decided, it has been at least suggested by the Supreme Court, without deciding the question, and without any adverse intimation, that a single controversy might possibly be removable under the second clause as well as under the first. Removal Cases, 100 U. S. 470. The decisions upon the second clause are not inharmonious with the construction here given, and any different construction would involve anomalies altogether inadmissible. In the leading case of Hyde v. Ruble, 104 U. S. 407, the Supreme Court,in defining when a cause is removable under the second clause, make no mention of the existence of several controversies in the suit as one of its conditions. The court say: "To entitle to removal under this clause, there must exist in the suit a separate and distinct cause of action, in respect to which all the necessary parties on one side are citizens of different States from those on the other." (4) Where a controversy is a removable one under the United States Constitution by reason of the citizenship of the several plaintiffs and defendants in different States, the individual right of either defendant to remove the cause has been recognized by Congress in the second clause of section 2 of the act of 1875; and this clause should therefore be construed as embracing suits having but a single controversy, in furtherance of the apparent general intent of the act of 1875, to provide for the removal of causes between individuals up to the limits of the undoubted intent of the constitution, since the language of the second clause is broad enough to include this, and there is no other clause sufficient for that purpose. It is an unsettled question whether the phrase "controversies * * between citizens of different States" means a controversy which is wholly between citizens of different States, or whether it may include controversies in which some only, but not all of the parties on opposite sides are citizens of different States. The question was elaborately argued, but not decided in the case of the Sewing Machine Companies, 18 Wall. 553. It was again referred to in Blake v. McKim, 103 U. S. 336, 338. In the Removal Cases, 100 U. S. 479, Justices Bradley and Swayne expressed the opinion that it embraces every controversy in which any of the opposing parties are citizens of different States; and entertaining that view they differed from the majority of the court, and held that the word "party," in the first clause, should have a wider construction than the word "plaintiff" or "defendant " under the judiciary act, and should include any one of several plaintiffs or defendants, and not be limited to all jointly. Cir. Ct., S. D. New York, July, 1884. Mutual Life Ins. Co. v. Champlin. Opinion by Brown, J.

NEW JERSEY COURT OF ERRORS AND APPEALS ABSTRACT.*

COVENANT-PLEADING-MINING SPECIFIC AMOUNT OF ORE-NON-EXISTENCE OF ORE.-In covenant, if non est factum is not pleaded, the plaintiff need offer no

*Appearing in 46 N. J. L. Reports.

proof of the execution of the instrument. Where a mining lease stipulated for raising annually a specified quantity of ore or to pay a stipulated rent, held, under the provisions of the instrument in question, that the non-existence of the quantity of ore agreed to be taken out was no defense to an action for the rent. This construction is in all respects in harmony with the decided cases; for in all the precedents the distinction is drawn between an agreement to pay a royalty, which is held to be dependent on the existence of the ore out of which it is to arise, and an agreement to pay a fixed sum in lieu of such royalty, in which latter condition of things such rent is held to be collectible irrespectively of the state of the mine. The rule of law upon this subject is accurately stated by Mr. Wharton in his treatise on Contracts. 1 Whart. on Cont., § 298. This author says: "But a specific agreement to pay rent is not vacated by the fact that the property leased turns out, without the fault of the lessor, of far less value than was supposed. This, as is elsewhere seen, is the case with leases of improved land where the improvements have been destroyed by fire, and the same rule is applied to leases of mines when the mine turns out to be unworkable, which if there be a lease covenanting to pay a fixed rent is no defense on the covenant. On the other hand, where the rent is payable in the shape of a royalty on minerals in the soil, no royalty is payable when no minerals are found." The same principle is propounded and illustrated in the following authorities, viz.: Ridgway v. Sueyd, Kay, 627; Phillips v. Jones, 9 Sim. 519; Marquis of Bute v. Thompson, 13 M. & W. 487; Jefferys v. Fairs, L. R., 4 Ch. Div. 448. Wharton v. Stoutenburgh. Opinion by Beasley, C. J.

DAMAGES EJECTING PASSENGER-INJURY TO FEELINGS.-A passenger upon a ferry boat, who has paid his fare and is forcibly and unlawfully ejected by an agent of the company, is entitled by way of damages to a reasonable compensation for the indignity and consequen. injury to his feelings on being thus treated. At the trial the judge charged that if the jury should find that the plaintiff did pay his fare, the damages, under the evidence and pleadings in the cause, should be only compensation for his loss of time for the period that he was detained from his business, and the money he paid, or its equivalent, to go across the river at the Market street (another) ferry, and the injury (if any) to his clothing, and other actual damages (if any), and that it was not a case, under the evidence and pleadings, in which they legally could give what are termed punitive, vindictive, or exemplary damages, and that there was no evidence that the plaintiff was injured in his person. The plaintiff's counsel excepted to this charge, and requested the court to instruct the jury that if they should find that the plaintiff had paid his fare before he was ejected from the boat, he would be entitled to be awarded a fair and reasonable compensation for the indignity and consequent injury to his feelings on being thus treated, but the court refused, and again charged on the subject of damages as above stated. The charge was erroneous; the judge should have charged as requested. The judgment should be reversed. Allen v. Camden and Philadelphia Ferry Co. Opinion by Runyon, Chan.

ALABAMA SUPREME COURT ABSTRACT. DECEMBER TERM, 1883.

EVIDENCE-TERMS OF ART-MAY BE EXPLAINEDLATENT AMBIGUITY.—(1) In cases where terms of art or science occur, in mercantile contracts where a peculiar language is used, employed by those only who are conversant in trade and commerce, and all other

instances in which words, besides their general, common meaning, have acquired by custom or otherwise, a well known, peculiar, idiomatic meaning in a particular country or a particular society, the sense and meaning of such language or words may be explained by evidence dehors the instrument itself. (2) Where the contract was that S. was to saw lumber for H. "at the price of two dollars per thousand feet to include thirty feet logs," held, that the "per thousand feet" in the written contract is a latent ambiguity not appearing in the face of the instrument and may be explained by oral proof. 1 Greenl. Ev., § 278; Gunn v. Clendenin, 68 Ala. 294; Chambers v. Ringstaff, 69 id. 140. In the case of Drake v. Goree, 22 Ala. 409, Justice Goldthwaite employed the following clear and forcible language: "The contract may relate to the time required for the making of an article, the process of which is known only to those actually engaged in its manufacture; to a thousand matters of art or skill, where truth is only to be obtained through the medium of experts; and in cases of this character, is the court blindly to grope its way to conclusions for no other reason than because the construction of a written instrument is involved, or to obtain through testimony that information upon which alone it can decide understandingly? Upon principle as well as authority, we entertain no doubt that in all cases where a written contract, although complete in itself, contains a term which it is impossible for the court to construe without the aid of evidence aliunde, it is proper to resort to evidence for that purpose." Smith v. Aiken. Opinion by Stone, J.

EMINENT DOMAIN-TRESPASS-INJUNCTION - COMPENSATION-LACHES-A court of equity has jurisdiction to restrain the commission or continuance of trespasses to lands. But when as in the present case, the title is purely legal, and the property not of peculiar value, the court will not intervene unless the remedy at law is inadequate, or there is a necessity for intervention to prevent irreparable injury. M. & W. P: R. Co. v. Walton, 14 Ala. 207; Burnett v. Craig, 30 id. 135; Brooks v. Diaz, 35 id. 599; Nevers v. Myer, 52 id. 198; Boulo v. R. Co., 55 id. 480. "There must be," says Judge Story, "such an injury, as from its nature is not susceptible of being compensated by damages at law, or such as from its continuance or permanent mischief must occasion a constantly recurring grievance, which cannot be prevented otherwise but by an injunction." 2 Story Eq., § 925; see also High on Inj., § 697. There is no authority which authorizes the interference of the court to prevent the mere taking possession of lands and holding them vi et armis; nor is there any authority which will justify interference because of the mere continuance of a tortious possession. The entry and possession however long it may continue, forms but one grievance, a single and indivisible cause of action, capable of full redress by legal remedies. Ballantine v. Town of Harrison, 37 N. J. Eq. 560; S. C., 45 Am. Rep. 667. The general rule is, that a corporation having the right to take lands in the exercise of the power of eminent domain, if it enters upon them without making just compensation to the owner, a court of equity will intervene for the protection of the owner until just compensation is made, if applies seasonably. High on Inj., § 622; Pierce on Railroads, 167-68. But the application must be made seasonably-the right to relief is lost by laches in seeking the protection of the court. High on Inj., § 643. In Bassett v. Salisbury Manfg. Co., 47 N. H. 439, the court said: "Another principle which is held to govern the discretion of the court in these cases is that the application for injunction must be seasonably made; and therefore if it appears that the owner of the property supposed to be affected by a nuisance

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