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which shall be binding upon the railroad companies


T law. The opiniou states the case. with respect to goods brought from another State, is a regulation of inter-State commerce as much as a law

Charles D. Wright and Francis Kernan, for plaintimposing a tax upou such goods. Therefore it cannot

iffs. be said tbat such a statute acts incidentally. It acts directly upon a commerce which is inter-State. It

Levi H. Brown and Beach & Cushing, for detenddoes not, like laws imposiug a tax upon gross receipts from traffic, affect such commerce indirectly. It as- WALLACE, J. If the evidence introduced upon the sumes to regulate and control it as commerce and has trial of this case was such tbat it would bave been the no other object and design. Therefore we cannot say, duty of the court to set aside a verdict in favor of the as was stated in the Peik case, that said section 57, if defendaut as contrary to evidence, if such verdict bad intended to apply to inter-State commerce, merely in- been rendered by the jury, then it was the duty of the cidentally affected such commerce.

court to direct a verdiot for the plaintiffs. Randall v. We have examined the case of the People v. W., St. B. & 0. R. Co., 109 U. S. 478; Griggs v. Houston, 104 L. & P. R. Co., 104 III. 476. That portiou of the case id. 553; Herbert v. Butler, 97 id. 319. that is in any way applicable to this is largely based The defendant's motion for a new trial presents the upon the coustruction given by that court to the three question whetber the evidence was such as to require cases cited, and reported in 94 U. S. Rep. For the the case to be submitted to the jury according to the reasons before stated, we think the Supreme Court of rule stated. The plaintiffs sued to recover damages the United States never intended to establish the doc- arising from a breach of warranty on the part of the trine as broadly as contended in the Illinois case. defendant. The plaiutiffs were manufacturers and

Thus far we have discussed the question presented sellers of vises at Watertown, N. Y., and the defeudas though Congress bad remained entirely passive ant was a manufacturer of steel at Cleveland, O. In upon the subject. Such however is not the fact. In August, 1880, the plaintiff's wrote to defendant, stat1866 it passed an act authorizing all railroad companies ing that they required steel for facing the jaws of the to transport passengers and freight from State to vises they were manufacturing, and detailing the State, and empowering them to receive and accept characteristics which steel should possess for that purcompensation therefor. It seems to us that the ex- pose, and requesting defendant to send them a sample istence of this statute must be cousidered in discus- to test. The defendant sent them a sample. It sing the power of a State to regulate inter-State com- proved unsatisfactory, and plaintiffs wrote defend

See U. S. Stat. at Large, vol. 14, 66; Rev. Stat. ant again, pointing out the defects, asking for another of U. S. (2d ed. 1878), p. 1017, 8 5:258.

sample, and stating that they could give considerable Il by this statute Congress undertook to legislate and continuing orders it defendants could furnish a upon inter-State commerce, the exceptional decisions satisfactory article. The defendants sent other eamof the United States Supreme Court decided in 1876, ples. Subsequently the plaintiffs sent several orders including the Peik case, do not militate in the slight- for lots of steel, accompanied with explanatory sugo est degree against the views announced herein. That "estions to defendant, and defendant sent the lots each railroad company in the case before us issued its ordered. The correspondence indicates that it was own way-bill to and from the connecting point with contemplated by both parties that plaintiffs should exthe defendant, and that each company was liable for periment with these lots, in order to ascertaiu whether the loss and damage occurring on its own road only, the defendant could supply them with the required does not affect the question of inter-State commerce.

article. October 22, 1880, defeudaut wrote plaintiffs as From the time the goods began to be moved from St.

follows: Louis, Mo., until they were delivered at Hutchinson, We bave been trying to get a cast of steel out for in this State, they were the subject of commerce and your work, but are so busy that we can't do any thing commerce among the States, and.tberefore inter-State in way of experimenting, but will send same as before

if desired. If you desire us to send sane quality as After a careful consideration of the whole record before please reiterate your order." and the important questious involved, we decide that October 25th plaiutiffs replied to this letter as folthe plaintiff is uot entitled to recover.

lows: The judgment therefore of the District Court must “ Yours of 22d at hand. Give us same quality as last be affirmed.

lot, and send as soon as possible, 500 lbs. **%, 500 lbs. All the justices concurring.

%x1, 500 lbs. 56x178.".

November 6th plaintiffs wrote defendant again as

follows: SALE- WARRANTY-DUTY OF PURCHASER. “Send us 500 lbs. steel (same quality), %*1%. We

are in great need of all stock o:dered, and if it proves UNITED STATES CIRCUIT COURT, N. D. NEW YORK. satisfactory on a fair trial hope to give you much JULY, 26, 1884.

larger orders."

Neither of these orders were filled by defendant, BAGLEY V. CLEVELAND ROLLING MILL Co.*

owing to defendant's inability to do so, and NovemA manufacturer of steel having in obedience to several

ber 20th defendant wrote plaintiffs explaining the orders from a customer furnished the latter with steel of

causes of the delay. November 22d plaintiffs wrote a certain quality, if upon receipt of a subsequent order

defendant, referring to their former orders, and orderfrom the same customer for the same article he supplies ing two more lots of 1,000 pounds each. Soon after an inferior quality, he is liable upon his undertaking that this all the orders were filled by the defendant, and the steel was of the quality ordered, and such liability after they were filled, and prior to March 5, 1881, is not lessened by the fact that the customer did not plaintiffs ordered and defendant sent four or five lots avail himself of his opportunity to test the steel before

of steel. March 5, 1881, plaintiffs ordered 2,000 pounds, using it. If there is a warranty of kind and quality, the purchaser has

“same quality as last ordered," which order was Olled a right to assume the warranty to be true, and therefore

by defendant. March 30, 1881, plaintiffs ordered three

tons, he may sell with like warranty, and defend suits for the

same quality as last." This order was filled

by defeudant by a shipment of the quantity, April breach, and recover of the vendor.

30th. *S. C., 21 Fed. Rep. 159.

All the lots sent by the defendant between Novem.


ber 22, 1880, and this last order, including the steel “through a misunderstanding here we did not send Bent upon the order of March 5th, proved satisfactory the right thing." The defendant then made a second to the plaintiffs, but the steel sent to fill the order of attempt to fill the order, and this after being advised March 30th proved a failure. Its defects were discov- by plaintiffs' letter of May 13th, what the particular ered before it was used,and May 13th plaintiff wrote to defects were, and what use the steel was required for, defendant as follows:

and that the steel sent before was satisfactory. There “The steel shipped by you April 30th is a complete was therefore no room for any possible misconception failure. You remember we want it for vise jaws, and or misunderstanding of the description and quali of require it to harden and take a temper when heated the steel which the defendant was instructed to send. and plunged in water. Wbat you have sent before The question then is, did the transaction import an has been good and satisfactory in this respect. We undertaking upon the part of the defendant to send bare tested some twenty or thirty pieces, and many plaintiffs steel of the quality theretofore sent, and took no temper at all, and some would harden in found to be satisfactory? spots and be soft iu other parts. We have tried it Although the term “warranty" is used as expressfaithfully in every way, with no better results. Or ing, in a general sense the nature of the defendant's course we cannot think of using it, as the tempering is undertaking, tbere was no warranty in the technical the last process almost, after all the work is expended sense of the term. A warranty is an undertaking on the vises. We see no other way than for you to wbich, though part of the contract of sale, is collateral duplicate the order with stock tbat will be right, and to the express object of it a buyer has a right to exwe returu this lot to you."

pect an article answering the description in the conMay 17th defendant wrote to plaintiffs :

tract; but this is not on the ground of warranty, but “We have investigated the complaint contained in because the seller does not fulfill the contract by givyour letter of the 13th against the steel, and find, that ing him something different. Abinger, C. B., in Chanthrough a misunderstanding here, we did not send the ter v. Hopkins, 4 Mees. & W. 399, 404; Martin, B., in right thing. We have entered a new order and will Azemar v. Casella, L. R., 2 C. P. 677, 699. Such an push it as fast as possible. Meanwhile please return undertaking is usually treated as a warranty, because the lot you have to us."

the description of the article is deemed a representaMay 21st plaintiff's wrote defendants, stating that tion that it answers the description. But where there they had sbipped the lot for return, and saying: is a collateral representation the rule obtains, that in

“We trust you will permit no delay in forwarding order to constitute a warranty, it must have been inthe duplicate order of proper quality. We are out of tended as such by the vendor, and understood as such stock, and many of our men will be idle until it ar. by the vendee. rives."

By assuming to comply with the plaintiffs' order, the May 24th defendant filled the order. The lot was re- defendant undertook to send steel of the same quality ceived by plaintiffs, June 1st, and a large part of it was as that furnished upon their order of March 5th. The used for the vises. After it bad been used and the order of March 30th was the one which defendant asvises sold, complaints were made by purchasers, and sumed to fill, and called for steel of the same quality upon investigation it was ascertained that the vise as sent in response to the order of March 5th. The jaws made from it were too brittle for practical use. letters and orders of plaintiffs subsequently were but Thereupon tests were made of the unused steel, part reiterations of the original instruction to send steel of of the lot in question on hand, and it was found the same quality as sent upon the order of March 5th. wholly unfit. These tests were made by taking sam- There was nothing for the jury to pass upon, and the ples of the lot and heating them, and plunging them question was one purely of law, whether defendant in water, when by filing and by striking them with a undertook to furnish plaintiffs with steel like that hammer, it was found they had not tempered, but sent pursuant to the former order of March 5th. That were brittle. Thereupon plaintiffs promptly gave no- they did so undertake is perfectly clear. The case, in tice to the defendant, and sent to the defendant sam- its facts, is almost identical with Gurney v. Atlantic & ples of the steel to test. After a long delay defend- | G. W. R., 58 N. Y. 358. The rule that the sense in ant's agent wrote to plaintiffs stating that he was sat. which an affirmation is intended, and whether it was isfied that defendant could not make steel of the kind understood and relied on as a warranty, are questions required for the plaintiff's purposes.

of fact for the jury, bas no application to such a case The damages sustained by plaintiffs in the cost of (Wason v. Rowe, 16 Vt. 525), any more than to the labor and the waste of material employed in the de- case where an article is sold by a particular descripfective vises, together with interest from the com- tion. Hogins v. Plympton, 11 Pick. 100; Winsor v. mencement of the suit, were $3,000.

Lombard, 18 id. 60; Borrekins v. Beran, 3 Rawle, 23; The court ruled , as matter of law, that there was an Richmond Trading Co. v. Farquar, 8 Blackf. 89; Hawagreement on the part of defendant that the steel kins v. Pemberton, 51 N. Y. 204; Dource v. Dou, 64 id. should be of the same quality as the lots that defend | 411. Where a vendor agrees to fill an order rent for ant sent to the plaintiffs between November 22, 1880, an article of a particular quality, his liability is the and the lot sent upon their order of March 30th; that same as when the proposition to sell an article of that there was a breach of tbis agreement; that the plainte description comes from him in the first instance; iffs owed no duty to defendant to test the steel before be is liable if the goods sent do not correspond using it; and that there was no evidence to author with the description. Dailey v. Green, 3 Harr. (Pa.) ize the jury to find that the plaintiffs or those in their 118. employ discovered the steel to be defective before the The evidence was 80 conclusive that there was a vises were finished. If tbese rulings were correct the breaob of the undertaking of the defendant, that the motion for a new trial should be denied.

jury would not have been authorized to draw a conThere was no conflict of testimony respecting the trary inference. If all the steel had been used, warranty. The plaintiffs' letter to defendant of there might bave been a slight question whether or not March 5, 1881, requested the defendant to send steel of some fault or error in working it had not been com“the same quality as last ordered.” The defendant mitted by the plaintiffs, although the testimony in sent that lot of steel. March 30th plaintiffs ordered their behalf was clear and uncontradicted that they tbree tous more, “same quality as last." The defend- used ordinary care in working it; but the tests made

ant undertook to fill tbat order, but failed for the rea- with tbe steel which had not been used, the entire ab. • son stated in its letter to plaintiff of May 17th, sence of testimony on the part of the defendant tend

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iog to attribute the result to any other causes than the 1 Camp. 190; Grimuldi v. White, 4 Esp. 95; Milner p. defeotive quality of the article, and defendant's sub- Tucker, 1 Car. & P. 15; and Sprague v. Blake, supra, sequeut implied admission of its defective quality are cited as holding that the remedy of the rendee left the case of the plaintiffs free from any fair does not survive the acceptance of the article, after doubt.

opportunity to ascertain the defect. The English If the plaintiffs bad a right to rely upon the under- cases were similar in their facts to Sprague v. Blike, taking of the defendant tbat the steel was of the qual- cases where the defects were obvious upon inspection ity ordered, the latter certaiuly has no right to com- of the article accepted. Some of the early English plaiu because the plaintiffs acted upon that assump- cases hold that the rule does not obtain where tbere is tion. If there is a warranty of kind or quality, the an express warranty; but Lord Ellenborough did not purchaser has a right to assume the warranty to be make such a distinctiou, and applied it to such a case true, and therefore he may sell with a like warranty, in Hopkins v. Appleby, 1 Starkie, 388. Modern text and defend suits for the breach, and recover of the writers of high authority do not adopt the unqualified vendor his special damages in consequence of doing so. proposition that the cause of action does not survive Clare v. Maynard, 7 Car. & P. 741; Co. v. Walker, id. an acceptauce, after knowledge that the article is pot 744; Swett v. Patrick, 12 Me. 9; Ryerson v. Chapman,66 in compliance with the condition of sale, but state id. 557 ; Lewis v. Peake, 7 Tauut. 153.

that the sileuce of the vendee, after acceptance with The testimony undoubtedly shows that up to a knowledge of the breach of the contract, may be incertain period in the dealings between the parties it terpreted as a waiver of a right to complain, and may was not certain that the defendaut could supply afford a presumption that the article was satisfactory. plaintiffs with the desired quality of steel, and that Story Sales, $ 405; Benj. Sales, $$ 825, 829. plaintiff's were experimeuting to ascertain whether the The law was stated by Comstock, J., in Muller 5. article sent would answer the purpose. But after the Eno, 14 N. Y. 597, as follows: plaintiffs had informed defendaut that certain lots

“The omission of the purchaser to give notice or to bad proved satisfactory, and gave an order for the make complaint, and the manner in which he deals same quality, the latter had no right to assume that fu

with the goods, may furnish strong presumption ture experiments would be made. After their letter

against him upon the question whether the warranty of November 6th there was nothing on the part of the is in fact broken, and in regard to the amount of inplaiutiffs to indicate their intention to make experi- jury he has sustained. But this is a very different mental tests. It is true that by their letter of May 16th

thing from saying that the law absolutely deprives him the plaintiffs notified defendant that they had found

of relief." the lot shipped pursuant to their order of March 30th unfit before using it, but the defendant was aware that

Undoubtedly acceptance after knowledge precludes

the vendee from exercising the right to rescind the this was not owing to any inberent difficulties in the

sale, and the cases of Day v. Pool and Park v. Morris article, but to its own fault in not sending the kind

At and Tool Co. place the rule upou ils correct foon. sent before, and by acknowledging its mistake plainly

dation ju this respect. intimated to plaivtiffs that it could supply the required article.

Manifestly there is no distinction in principle, as to It is held in several cases by the courts of New

the rights and remedies of a purchaser, between a York that upon an executory contract for the sale and

cause of action arising out of a breach of contract by delivery of personal property the remedy of the ven

the vendor to deliver an article of a specified quality or dee to recover damages, on the ground that the article

description, or out of the breach of a representation furnished does not correspond with the contract, does

whicb is collateral to the contract, or out of such a not survive the acceptance of the article by the vendee

breach when the representation or warranty is im. after opportunity to ascertain the defect. Hargous v.

plied instead of being express. In either case there is Stone, 5 N.Y. 73; Reed v. Randall, 29 id. 358; Dutchess

an agreement, in substance and purport, to the same Co. v. Hurding, 49 id. 321.

effoct; in either a breach of it works the same injury The later cases in the same courts establish quite de

to the vendee; and in either the same presumption of cided modifications of the doctrine.

fact arises from an acceptance of the article after disIn Gaylord Manufacturing Co. v. Allen, 53 N. Y.

covery of its defeots. Whether the cause of action is 519, tbe court say:

for a breach of a contract or for the breach of a war. “It is not intended to express an opinion as to the

ranty is a mere matter of nomenclature (Hastings 5. rule in case there were latent defects, or those which

Lovering, 2 Pick. 214; and the breach of a promise im. could not be discovered at the time of the delivery or

plied by the law works the same consequences, imthe acceptance of the article." Allen, J.

poses the same obligations, and creates the same In Gurney v. Atlantic & G. W. R. Co., supra, it is

rights, as the breach of an express promise. The beld not to apply when the defects cannot be ascer

language of the court in Woolcott v. Mount, 36 N. J. tained by examination, upon receipt of the article, but

L. 262, is apposite, and is accepted as a sensible and ouly upon use.

satisfactory exposition of the law, and is as follows: Iu Day v. Pool, 52 N. Y. 416; S. C., 11 Am. Rep. 719; “The obligation rests upon the contract. Substanand Purks v. Morris A.x and Tool Co., 54 N. Y. 587, the tially the description is waranted. It will comport court held that where there is an express warranty

with sound legal principles to treat such engagemeuts upon an executory contract of sale, the vendee is not as conditions in order to afford the purchaser a more bound to return, or offer to return the article; but enlarged remedy by rescission than be would have on after acceptance, and after the discovery of its it simple warranty; but when his situation bas been defects, may retain it and recover upon the war- changed, and the remedy by repudiation bas become ranty.

impossible, no reason supported by authority can be In the cases of Hargous v. Stone, and Reed v. Ran- adduced why he should not have upou bis contract dall the defects in the article accepted by the vendee Buch redress as is practicable under the circumstave were obvious upon inspection, and if the rule is con- ces. In that situation of affairs the only available fined to such cases, it is supported by some of the ear- means of redress is by an action for damages. lier English decisions, and by Sprugne v. Blake, 20 Whether tbe action shall be technically considered Wend. 61. The question is not much considered in

an action on a warranty, or an action for the Hargous v. Stone, but in Reed v. Randall the authori. non-performance of a contract, is entirely immateties are considered, and the cases of Fisher v. Samuda,


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The defective quality of the steel received by the plaintiffs was not obvious upon inspection, and as the fault was a latent one, their acceptance and use of it is not material, either upon the theory that their cause of action did not survive the acceptance, or that their conduct starts the presumption that it was a satisfactry article. Undoubtedly the plaintiffs could have discovered the latent defects in the steel here if they had made a thorough test by heating and plunging it.

The question however is not what they could have discovered, but what they did discover, and upon that question the testimony is decisive. Acting upon the assumption that the defendant had sent them the article ordered, there was probably a relaxation of their usual vigilance in testing its quality, but not a scintilla of evidence to show or raise the inference that they were aware of its defects until after it had been used, and the vises in which it had been used had been sold in the market.

The damages sustained by the plaintiffs were such as it was reasonably to be anticipated by the parties would accrue, in view of the special use to which the plaintiffs were to apply the steel if it proved to be unit for the purpose. They ensued as the natural and ordinary consequence of the use of the steel in the manner contemplated by both parties. Upon the authority of many analogous cases the plaintiffs were entitled to recover to the whole extent of their actual loss. Hadley v. Buxendale, 9 Exch. 341; Smeed v. Foord, 102 E. C. L. 612; Passinger v. Thorburn, 34 N. Y. 634; Flick Y. Wetherbee, 20 Wis. 392; Van Wyck v. Allen, 69 N. Y. 62; S. C., 25 Am. Rep. 136; White v. Miller, 71 N. 118; S. C., 27 Am. Rep. 13.

It is undeniably true that when a party who is entitled to the benefit of a contract can save himself from a serious loss arising from a breach of it by reasonable exertions, he will not be permitted to charge the delinquent with damages which arise iu conse. quence of his own inactivity. Warren v. Stoddart, 105 U. S. 229. Good faith and good logic require that he be confined to a recovery of those damages only that arise from the default of the other party. If the plaintiffs here had had any just reason to suppose that the steel they were about to use was unfit for the purpose, they would not be permitted to shut their eyes to the probable consequences, and when they proved disastrous to fall back upon the defendant for indemnity. But they are not to be deprived of compensation to the extent of their loss upon the theory that they owed any active duty of investigation and experiment to the defendant. They had a right to assume that the steel sent tbem was what the defendant undertook to send them, and no implication of negli. gence on their part can be indulged, in the absence of testimony to indicate that its unfitness was observed before it was used. None was offered, and the case rested on the uncontradicted testimony of the employees of the plaintiffs, all of whom testified that no defects were noticed during the process of using the steel.

Upon the whole case the conclusion is reached un. hesitatingly that the defendant cannot fairly complain of the rulings at the trial. There were no disputed facts, and no disputable inferences from the facts shown upon which a verdict for the defendant, or a recovery of a less amount of damages, would have been warranted; and it would bave been the duty of the court to set aside such a verdict if it had been found by the jury.

The motion for a new trial is denied.

ages for personal injuries alleged to have been caused by defendant's negligence, the evidence of experts as to future consequences which are expected to follow the injury is competent. To authorize such evidence however the apprehended consequences must be such as in the ordinary course of nature are reasonably certaiu to ensue; consequences which are contingent, speculative or merely possible are not proper to be considered in estimating the damages, and may not be proved. Curtis v. Syracuse & Rochester R. R. Co., 18 N. Y. 541; Filer v. N. Y, C. & H. R. Co., 49 id. 45: Clark v. Brown, 18 Wend. 229; Lincoln v. Saratoga R. Co., 23 id. 425, 435. Strohm v. New York, L. E., etc., R. Co. Opinion by Rapallo, J. [Decided June 17, 1884.]

EMINENT DOMAIN-STATUTES STRICTLY CONSTRUED -FEE OR EASEMENT.-A statute authorizing the taking of private property against the owner's consent must be strictly construed ; and while the property and the estate to be taken, whether an easement or a fee, and the purpose to which it is to be applied, may be designated in the statute, it must be by unequivocal words. The act providing for a supply of water in the village of Amsterdam (ch.101,L.1881, as amended by ch. 197, L. of 1882) authorizes and requires the taking of a fee in the lands required for the purposes of the act. As the commissioners in this case might purchase,so no doubt the Legislature might empower them to take by eminent domain, a right to enjoy a privilege in or out of the owner's estate which would not give them a right to enjoy the estate itself by exclusive or permaient occupation. Such a right, however acquired, would be an easement, and as no grant is pretended, the question before us concerns the proper construction of the statute (Brooklyn Park Com’rs v. Armstrong, 45 N. Y. 234), and the petition upon which the commissioners have undertaken to proceed. The act itself, inasmuch as it authorizes the taking of private property against the owner's consent, is to be strictly construed (Sweet v. Buffalo, N. Y. & Phila. Ry. Co., 79 N. Y. 293; Adams v. S. & W. R. Co., 10 id. 328), and while the property and the estate which is to be taken, whether an easement or fee, and the purpose to which is is to be applied may be designated in the statute (People v. Smith, 21 N. Y. 595; Sweet v. Buffalo Ry. Co., supra; Brooklyn Park Com’rs v. Armstroug, supra), it must be by unequivocal words, and in pursuing it, all prescribed requirements must be strictly observed. Matter of N. Y. C. & H. R. R. Co., supra; Matter of Application of City of Buffalo, 78 N. Y. 362; Matter of Com'rs of Wash. Park, 52 id. 131. The owuer may, if the Legislature so declares, be divested of the fee, although the public use is special, and not of necessity perpetual. Sweet v. Buffalo R. Co., supra. On the other hand, the entire estate need not be taken, but only that interest which is necessary to accomplish the prescribed purpose. 72 N. Y. 330. See also People v. Haines, 49 N. Y. 587; Matter of N. Y., etc., R. Co., 70 id. 191. Matter of Water Com’rs of Amsterdam. Opinion by Danforth, J. [Decided June 24, 1884.]

INSURANCE-POLICY-HOLDER-NO SET-OFF AGAINST RECEIVER.–At the time of the appointment of plaintiff as receiver of the A. M. L. Insurance Co., that company held certain claims against A.; and A. held two endowment policies not yet due issued by that company, by tbe terms of each of which it agreed to pay the sum insured to his wife in case of his death prior to the date specified; if he was living at that date, to pay the sum to him. In an action upon said claims, held, that A. was not entitled to get off the reserve value of the policies. It is true that they had a reserve value at the time when plaintiff was appointed receiver, and for that value they were entitled to their

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pro rata share from the assets of the company. But to 215. Cir. Ct., S. D. N. Y., July 31, 1884. Estes v. Wilwhom was that value payable? It did not all belong liams. Opinion by Wheeler, J. to A. at that time, neither did it belong to his wife. It

REMOVAL OF CAUSE-FORMAL COMPLAINANT-SEPAcould not then be kuowu to whom it would ultimately be payable. Neither one could at that time demand

RATE CONTROVERSY.-(1) When a party complainaut payment of that value or receipt for or discharge it.

to a bill in chancery has been made so, not with a view Either one could claim that the money should be paid

to obtain any decree in his favor, but solely for the into court, and invested under its direction to await

purpose of securing the rights of other individual com

plainants, his being a resident of a State other than the event upon which it would be determined to whom it was payable. Under such circumstances it is impos-moval. Hawes v. Oakland, 104 U. S. 450; Hazard v.

that in which the defendant resides is no cause for resible to say that at the time of the appointment of the

Durant, 11 R. I. 195; Mason v. Harris, 11 Ch. Dir. 97; plaintiff as receiver the money was due to A. in such a sense that he could avail himself of it as an off-set. It 457; Ayers v. Chicago, 101 id. 184. (2) Whether there

27 Eng. Rep. 368; Myer v. Construction Co., 100 U. S. is true that one policy by its terms matured on the 7th of December, 1880, so that at the time this action was

is a separate controversy warranting a removal to the

United States Circuit Court must be determined by commenced the defendant was solely interested in

the state of the pleadings and record of the case at the that policy, and was solely entitled to the reserve value

time of filing the petitiou for removal, and not by the thereof. But that value was not due at the time the

allegations of that petition. Cir. Ct., D. R. I., Aug. plaiutiff was appointed receiver, and hence is not available as an off-set. Myers v. Davis, 22 N. Y. 489; Mar

4, 1884. Hazard v. Robinson. Opinion by Gray, J. tin v. Kunzmuller, 37 id. 396. Newcomb v. Albany. CONSTITUTIONAL LAW-“SPECIAL OR LOCAL"-TAXOpinion by Earl, J.


CORPORATION.-An act which provides for the taxaCORPORATION-MANUFACTURING-PENALTY-ACT OF tion of mortgages on laud in no more than one county, 1848—ACTION DOES NOT SURVIVE.-An action against a

there being mortgages on land in more than one trustee of a corporation organized under the General county, is void for want of the uniformity required by Manufacturiug Act of 1848, ch. 40, to recover the pen.

section 1 of article 9 of the Coustitution of the State, alty imposed by section 12 thereof, because of failure and also because it is contrary to section 23 of article to make and file an annual report, is one ex delicto, but 4 of said Constitution, which forbids special legislation is not iư any respect based upon the theory of afford

on that subject. It is not nece ary to add to what ing compensation to the injured party for damages sus

was said on this subject in the former opinion, as the tained by reason of the omission complained of. This

brief only refers to Allen v. Hirsch, 8 Oreg. 412, whicb court held in the case of Merchants' Bank v. Bliss, 35

I regard as overruled by Manning v. Klippel, 9 id. N. Y. 412, that an action brought against a trustee of 367, so far as it decides that a public statute cannot be a corporation to recover the liability imposed by sec

a “special or local” one within the meaning of section tion 12 of chapter 40 of the Laws of 1848, was governed 23 of article 4 of the Constitution of the State. A by the statutory limitations applicable to actions to special" act relates to a part, and not the whole-as recover penalties. Since that decision the subject of one-county mortgages, and not all mortgages; and actions under that section of the statute has frequently whether it is also considered a “public" or "private been under the consideration of this court with the one, is altogether immaterial and irrelevant. Under uniform conclusion that the actions therein provided the Constitution of this State all statutos are "public" for are peval in character, and are not in any respect

ones unless otherwise declared in the body of the act. based upon the theory of affording compensation to

Art. 9, $ 27, Oreg. Const. If an act is not a “special the injured party for damages sustained by reason of

one because it is also a “public" one; that is, au act the omission complained of. Wiles v. Suydam, 64 N. of which courts take judicial notice, then every proY. 173; Easterly v. Barber, 65 id. 252; Knox v. Bald-hibition contained in the Constitution against special win, 80 id. 610; Veeder v. Baker, 83 id. 156; Pier v. legislation may be violated with impunity. Accord George, 86 id. 613. The logical effect of these decisions ing to this idea, if the law is "public" it is not special. is to classify such actions among those usually desig. But the Constitution makes it public, however special pated as actions ex delicto, and which at common law

in its nature or operation, unless the Legislature othwere extinguished by the death of the tort feasor. erwise declare. So as there can be no special law acSuch a cause of action therefore is not within the pro- cording to this theory, unless the Legislature declares visions of the statute authorizing the survivorship of

it private, it is not likely that when it undertakes to certain actions for tort (2 R. S. 448, $ 1), as it is not for pass an act upon subjects forbidden to special legisla"wrongs done to the property rights and interests of

tion it will take the trouble to declare it private, another," and upon the death of the trustee the action and thus subject it to the risk of being declared uncannot be revived against his personal representatives. constitutional. But undoubtedly under the ConstituStokes v. Stickney. Opinion by Ruger, C. J.

tion of the State au act may be both "public" and [Decided June 17, 1884.)

“special or local," and the presence of one of these qualities in no way implies or excludes the other. An

act cannot be both “public” and “private," but it can UNITED STATES CIRCUIT COURT AB

be either and be special. The act of 1882, Session Laws, STRACT.*

64, is the first and only act providing for the taxation of mortgages as things or property; but prior to that

time a solvent debt, whether secured by mortgage or COPYRIGHT-FOREIGN PUBLISHER-AMERICAN AS

not, was taxable as personal property. When an act SIGNEE-USE OF A NAME-RIGHT OF ACTION.—The pub

contains an unconstitutional provision which renders lisher of “ Chatterbox,” in England, having assigned it void, and the act can stand and be executed without the exclusive right to use and protect that name in it, according to the geveral purpose of the Legislature, this country, the assigneo may maintain his action

such clause may be stricken out by the court, and tbe against any other person who undertakes to publish books uuder that name in the United States. Jollie v.

act considered as if it had never been inserted; but Jaques, 1 Blatchf. 618; McLean v. Fleming, 96 U. S.

not otherwise. For the purpose of jurisdiction in the

national courts, the members or stockholders of a cor*Appearing in 21 Federal Reporter.

poration are conclusively presumed to be citizens of


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