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law will not permit its principles to be frittered bility for debt is likewise void though the estate away by mere form.
Vide 2 Cruise Dig., ch. 1, § 30 given be for life only; at least, this is so, if there is et seq. Adjudications on this point, therefore, under no clause by which it is to cease and no provision one apply equally well to the other.
over in favor of another. Brandon v. Robinson, 18 In accordance with generally expressed notions Vesey, 429; Blackstone Bank v. Davis, 21 Pick. 42. upon the question, covenants against alienation are And in England it would seem that this result canclassified as follows; although the propriety of such not be avoided through the medium of a trust. classification rests mainly upon dicta and not upon Piercy v. Roberts, 1 My. & K. 4. But cases in this legal decisions, as will be shown hereafter.
country seem opposed to this latter proposition, and I. Those which are in general restraint on aliena- in certain cases will allow such a restriction if the tion.
life estate is given in trust. Rife v. Geyer, 59 II. Those which restrict it for a limited time. Penn, St. 393; White v. White, 30 Vt. 338. And a III. Those which restrict it as to purchasers. provision directed against alienation of a life estate
I. A general restraint on alienation sought to be with a limitation over in case of its violation, is not imposed upon an estate in fee is void everywhere. unusual and is considered valid. Rockford v. HackIt is so laid down in all the books. Coke upon Litt. man, 9 Hare, 475. While some of these cases are 223a; 2 Cruise Dig., tit. xiii, ch. 1, § 22; 1 Washb. quite beside the subject itself, yet they serve well to R. P. 80, 4th ed. An argument founded on sup- show that it requires something more than the mere posed grounds of public policy may lead to this caprice of a grantor or donor, to sustain any such result, but to us, the true foundation of the rule is restriction. It will be noticed that in them third the repugnant natures of the two attempts — to give parties had an interest depending upon the observthe principal and to withhold that important in- ance and validity of the restriction. Sucb cases cident. Public policy of the State would be best are clearly analogous to the case of a reversioner satisfied by banishing restrictions altogether, and withholding the right of alienation which he is alyet it is known to give way in many such cases in lowed to do. Viewed in this light they are not at the law. Indeed there is a maxim -- modus et variance ; indeed, the arguments of Mr. Justice contentio vincunt legem. It is therefore by no Meredith in Renaud v. Tourangeau, and of Judge means an unerring guide; when and when not in- Christiancy in the late and well-considered case of fringed too much would be the puzzling question. Mandlebaum v. McDonell, infra, were largely based Christiancy, J., Mandlebaum v. McDonell, 29 upon and controlled by this consideration. Mich. 107; S. C., 18 Am. Rep. 61. Such a restraint II. Restrictions for a limited time. is repugnant to the ownership, and clearly one must Since the decision of Large's case (2 Leonard, 82), fall. The law has wisely and consistently declared in the twenty-ninth year of Elizabeth's reign, dicta against the former. Waker v. Vincent, 19 Penn. St. of judges and statements of text writers have been 369; Gleason v. Fayerweather, 4 Gray, 348. In the numerous to the effect that a restraint for a limited language of Judge Sharswood in Doebler's Appeal, time, if reasonable, may be annexed to a conveyance 64 Penn. St. 17, the grantor “cannot make a new in fee. Some of these dicta, though often cited as estate unknown to the law."
direct adjudications, are found in McWilliams v. Nor is it necessary to make the covenant or con- Nisly, 2 S. & R. (Penn.) 507; Langdon v. Ingram's dition void that should expressly prohibit all Guardian, 28 Ind. 360; Cornelius v. Ivins, 2 Dutcher, alienation. If the practical effect is to produce that 376; and it is mentioned as allowable in 1 Washresult, it is enough. This is well illustrated in the burn on R. P. 80., 4th ed. It is noticeable, howleading case in New York of De Peyster v. Michael, 6 ever, that Coke and Littleton, while on this point, N. Y. 467, where in a lease in fee a “fourth sales" fail to recognize such a distinction or even to advert clause was inserted, giving to the grantor one- to it. Coke upon Litt., § 361. fourth of the purchase-price on all future sales of The very question has, of late, come before the the land. The subject was exhaustively discussed courts in Michigan and Iowa, where, after a masand the conclusion reached that the provision prac- terly discussion and extensive review of the cases, tically operated as a general restraint, was repug- the validity of any restriction, even for the shortest nant to the grant and was consequently void. time, was denied, and the distinction shown to be
The rule however is not infringed by providing void of reason and good authority. Mandlebaum v. in a deed to several that the estate shall not be sub- McDonell, 29 Mich. 78; S. C., 18 Am. Rep. 61; Mcject to partition, as the right of alienation still re- Cleary v. Ellis, 54 Iowa, 311; S. C., 37 Am. Rep. mains. Hunt v. Wright, 47 N. H. 396. And it has 205. There are also other cases which cannot be been held that it does not extend to grants from the well understood except upon the theory that they United States, which, under the Constitution, may are in support of this doctrine. Hall v. Tufts, 18 impose any restriction. Farrington v. Wilson, 29 Pick. 455; Renaud v. Tourangeau, L. R., 2 P. C. 4: Wis. 383. Nor to a deed of a pew in a church pur- Walker v. Vincent, 19 Penn. St. 369. We are unsuant to a by-law of the society. French v. Old South able to perceive a logical reason, if repugnancy is Society in Boston, 106 Mass. 479.
the test (to discriminate), between a restriction for Apropos to the general rule above, a restraint on all time and one for a period falling short of that; alienation or a provision that there shall be no lia- there is at most only a difference in degree. How
ever, the question is quite unsettled, and opposing conveyance and no tenure. Mr. Smith, and his Ameridecisions in Kentucky, though not of much weight, can editors, in their note to that case, have zealously are Stewart v. Brady, 3 Bush, 623, and Stewart v. maintained that in order that the burden may run Barrow, 7 id. 368.
with the land and bind purchasers, there must be, in III. Restrictions as to purchasers.
all cases, a privity of estate founded upon tenure Lord Coke says a condition that the grantee shall
between the covenantor and covenantee. 1 Smith's not aliep to a particular person is valid. Coke upon
Lead. Cas. 160, 178, et passim. To this we cannot Litt., $ 361. This question has not required any de- assent. If it were true, there could be no such cision; but doubts from excellent authorities have thing evidently as the burden of covenants in a conbeen expressed as to the validity of even this limited veyance of a fee running with the land; except in a restriction. 4 Kent Com. 132, 12th ed. But it is State, as Pennsylvania, where the statute of Quia well understood that the right to purchase cannot
Emptores has never been adopted. Ingersoll v. be confined to a particular person or class. Attwater Sergeant, 1 Whart. 336. Where that statute is in v. Attwater, 18 Beavan, 330; Schermerhorn v. Negus,
force, tenure between the grantor and grantee is un1 Denio, 448.
known; such a proposition is in the very face of Second. We now come to the consideration of the the decisions, and must fall to the ground. Bronmore important as well as practical branch of the son v. Coffin, 108 Mass. 180; S. C., 11 Am. Rep. subject — covenants respecting the use and enjoy- 335; Van Rensselaer v. Hayes, 19 N. Y. 72; Georgia ment of real property. This includes covenants re
Southern Railroad v. Reeves, 64 Ga. 492. garding other land retained by the grantor as well
But while we deny tenure or the relation of landas that conveyed by him; adjoining land-owners
lord and tenant as a requisite, it is nevertheless true, also very frequently enter into covenants of this that there must be that which the courts, for want character, although there be no conveyance.
of a better name, have styled a “privity of estate." The object usually is to regulate the character and 2 Wash. on R. P. 284, 4th ed. This is but the position of buildings; the uses to which they are to ordinary relation of parties, resulting from the inbe put; the rights and obligations of adjoining own- terest which one land-owner, as such, bas in the ers as to party-walls, division fences and the like; land of another. In other words to formulate or to provide for a general plan to be observed in the from the cases a comprehensive rule --- a covenant laying out of lots, opening streets and otherwise for on the part of one laud-owner, as such, in favor of the general improvement of land.
another, directly relating to an easement or serviThere can be no objection to these covenants in tude subsisting between them, or if in a convey. the way of a restraint on alienation, or as offending ance, directly affecting land itself, will have the against the rule of perpetuities, because, subject to capacity of running with the land thus burdened whatever restrictions or equities they impose upon and of binding its subsequent purchasers; without the land, it is entirely free to alienation. Tobey v. the elements above stated or implied, the covenant Moore, 130 Mass. 448. The grantee need not sign is collateral. This is the true principle and one the deed in which there are provisions purporting which lies at the bottom of all the cases. In the to bind him as to the use of the land; his accept- former category may be ranked such cases as Bronance of it will be sufficient. Maine v. Cumston, 98 son v. Coffin, 108 Mass. 175; 8. C., 11 Am. Rep. 335; Mass. 317. A further question is whether such ac- where the subject was handled with marked ability; ceptance is equivalent to a strict covenant on his Dorsey v. St. Louis, etc., Railroad Co., 58 Ill. 65; part as regards the restriction running with the land; Morse v. Aldrich, 19 Pick. 449; Savage v. Mason, 3 and the decided weight of authority also answers Cush. 500; and Burbank v. Pillsbury, 48 N. H. 475. this affirmatively. Atlantic Dock Co. v. Leavitt, 54 In such cases the covenant is annexed to the easeN. Y. 35; S. C., 13 Am. Rep. 556; Burbank v. Pills- ment, which serves as the medium for the requisite bury, 48 N. H. 475; Georgia Southern Railroad v. privity. Norfleet v. Cromwell, 64 N. C. 1; Reeves, 64 Ga. 492. But a recent Massachusetts 70 id. 634; S. C., 16 Am. Rep. 787; Brondecision holds that unless the agreement is strictly
Coffin, 118 Mass. 163; S. C., 11 Am. a covenant under the grantee's hand and seal it will Rep. 335. On the other hand, cases where not authorize a suit in the name of the purchaser of the covenant affected the land only in the land benefited. Martin v.
Drinan, 128 Mass.
indirect manner, or was vot annexed to any ease515. The all-important doctrine technically known ment and hence collateral, are: Brewer v. Marshall, as “covenants running with the land” will now be | 18 N. J. Eq. 337; S. C., 19 id. 537; Horsha v. Reid, considered.
45 N. Y. 415; Lyon v. Parker, 45 Me. 474; Hurd v. I. From the view of a court of equity.
Curtis, 19 Pick. 459. A distinction is generally drawn between the bur- The question here might arise, how, if in any den and the benefit. When will the burden or ob- case there be nothing but covenants and no grantligation of a covenant in a conveyance run with the ing words, such an easement may be created. land? The resolutions so long ago laid down in Doubtless, words of covenant are not the most Spencer's case cannot materially aid us in solving proper to create an easement, yet they may well this question. That case was founded upon a cove- have that effect where that is the plain intention. nant in a case where there was tenure ; this is in a Rornbotham v. Wilson, 8 H. L. Cas. 348.
The much questioned case of Cole v. Hughes, 54 land at law and so bind purchasers, there would be N. Y. 444; 8. C., 13 Am. Rep. 611, lately followed no occasion for this head. But courts of equity in Scott v. MeMillan, 76 N. Y. 141, impliedly recog- are not bound down so much in the exercise of their nizes the doctrine of the cases cited above, but de powers, and hence resort to them is more frequent, parts from them, as it is believed with deference, in as is indicated by the reported cases. From a its application. This case is of too much import- theoretical standpoint this has its drawback in that ance to be passed over without notice. Dean, about the legal question is invariably waived and passed to erect a house upon his land, agrees with Voorhees, by without solution. Vide Western v. Mac Dermott, adjoining owner, that the wall to be erected, one- 2 Chan. App. 72. half on each, shall be a party-wall, and the latter The equity doctrine was first put upon a firm covenanted that whenever he, his heirs or assigns, foundation by the leading English case of Tulk v. should use it, he or they would pay the value of the Moxhay, 11 Beav. 571; S. C., 2 Phillips, 774, and part so used. Both parties sell; defendant pur- it is now a settled principle that where the purchases Voorhees' lot and uses the wall. Action for chaser takes with notice of the restricted agreethe value of the use. Earl, J., "I do not think it ment, whether oral or written, though it create no did” (i. c., the covenant run with the land). “At privity of estate, or strict easement at law, its vio the time Voorhees made the covenant he received lation by him will be restrained by a court of equity. no interest in land and granted none. * He Kirkpatrick v. Peshine, 24 N. J. Eq. 206; Tallmadge did not convey to Dean any land upon which the v. East River Bank, 26 N. Y. 105. The underlying wall was built."
idea here is that of a trust between the parties to be True, he did not convey or receive any land, but benefited and the covenantor, the latter in equitable this does not meet the case. Did not the agreement contemplation agreeing to hold the land to the use create a party-wall, and is it not familiar law that of the restriction. Then a purchaser taking with each is entitled to the support of the other's half as notice is burdened with the trust. This notice may an casement? Bu
he court say, that except for the be actual or constructive. Actual notice explains agreement Voorhees would have had a right to use itself. The record of the conveyance will be conthe party-wall without making compensation, it structive notice, provided, of course, the purchaser being in part upon his premises. True again, but claims under the covenantor, and it matters not except for the agreement, the party-wall in all how far back in a series of conveyances the covenant probability would never have existed. The conclu- is found. Burbank v. Pillsbury, 48 N. H. 475; Atsion reached was in direct opposition to the above lantic Dock Co. v. Leavitt, 54 N. Y. 35; S. C., 13 cited cases of Savage v. Mason and Maine v. Cumston, Am. Rep. 556. Any circumstances which would from Massachusetts, and implies that an easement put a reasonable man on inquiry will suffice, as e.g., cannot serve as a medium for the required privity of a regular uniformity in a row of houses. Vide estate against the almost unbroken line of decisions. Sutherland, J., Tallmadge v. East River Bank, 26 N.
As regards the benefit of a covenant running with Y. 111. the land, this privity of estate, shadowy at best as But there are limits, though perhaps not well deit may sometimes seem, appears to have been gener-fined, beyond which even a court of equity will ally ignored from the first. Here the requirement refuse to go. Its interference being a matter of is that the covenant relate to and concern the land sound discretion, it will be governed largely by the of the covenantee, and that it will benefit the owner dictates of public policy. Keppell v. Bailey, 2 My. by reason of his ownership. National Union Bank v. & K. 517; Brewer v. Marshall, 19 N. J. Eq. 537. Segur, 39 N. J. Law, 173; Packenham's case, 42 Edw. And by a just consideration as to whether, in view III, 3; 1 Smith's Lead. Cas. 150, 169, 7th Am. ed. of a material change in surroundings, it will be
The burden or the benefit of a covenant, it is ob- effectual to attain the ends sought or to carry out served, will have capacity to run with the land the original design of the parties. Trustees of Cowhere, in the one case, there is privity of estate lumbia College v. Thacher, 87 N. Y. 311; S. C., 41 and in the other, where the benefit directly con- Am. Rep. 365. Acquiescing in a breach of the cerns the land; but granting these elements, it is covenant sued upon will be a good defense to a suit conceived the real and ultimate inquiry then is as to therefor (Gaskin v. Balls, L. R., 13 Chan. Div. 324); the intention of the parties manifested by their but not if the acquiescence be in the breach of anlanguage or by circumstances. Vide Dwight, C., other and distinct covenant (Lattimer v. Livermore, Brown v. McKee, 57 N. Y. 684 ; and Phelps, J., 72 N. Y. 174); nor will the fact that the real damKellogg v. Robinson, 6 Vt. 280.
ages are merely nominal be any defense. KirkThe foregoing remarks on covenants running patrick v. Peshine, 24 N. J. Eg. 206. The foregoing with the land are equally applicable to incorporeal observations are also to be applied in favor of purhereditaments, as ē. g. easements and perpetual chasers of the premises or of separate parcels inrents. Sterling Hydraulic Co. v. Williams, 66 III. tended to be benefited by these equitable restric393; Van Rensselaer v. Read, 26 N. Y. 558.
tions. Barrou v. Richard, 8 Paige, 351. But it II. Restrictive covenants from the view of a court must appear that the benefit was intended to pass
as a part of the subject-matter of the purchase. Did all covenants in conveyances run with the Renals v. Cowleshaw, 38 Law Times, 503; 41 id. 116.
by which the said corporation of Dartmouth College If the restriction be by way of covenant, the
was enlarged and improved and the said charter
amended. remedy, at law, for a violation is damages, or in
The Superior Court of New Hampshire decided that equity, an injunction. A clause liquidating the
this could be done, whereupon a writ of error was damages in case of breach does not necessarily sued out and carried to the preme Court of the supersede the equitable remedy by injunction. United States, which reversed the decision of the Phænix Ins. Co. v. Continental Ins. Co., 87 N. Y.400. State court on the ground of its unconstitutionality. Let the restriction take the form of a condition, and
Why should railroad and other corporations which are
private, yet public in their use, receive for their stockthe proper remedy is the legal action of ejectment holders more compensation or percentage on their cost to forfeit the land. Corell v. Springs Company, 100 than a fair percentage on money loans? And why should U. S. 55. Sometimes the deed is so drawn as to not the Legislature enact that the net earnings of such embody both a condition and a covenant, and incorporations in excess of a fixed return upon the actual this case the grantor has his election of remedies.
capital invested, shall be paid into the treasury of the
State, for the use of the people, and that the rate of Stuyvesant v. Mayor, etc., 11 Paige, 414.
charges shall be such as to produce this return of WILLIAM H. HAMILTON. profit as nearly as can be estimated ? Among other
beneficial results which would arise from such a plan
would be a tendency to prevent “strikes” in corporaLEGISLATIVE REGULATIONS OF CORPORATE | tions, as there would be no extraordinary profits left PROFITS.
in the possession of the corporation, which might sug
gest to the laborer in the company that he ought of A
JUST compensation for the fruits of labor done by right to participate in the profits wbich his own hands individuals or corporations, is the only basis on
have assisted in accumulating. which such labor can be successfully done; hence a
As the legitimate consequence of such legislation competition in such labor, which renders it more ex- competition would be gradually done away with, by pensive cannot be continued without a loss to the placing all profits on an equal and equitable basis. party supplying the faults of such labor.
If any were unwilling to accept a charter with such This is a law of business which neither the Legisla-limitations and restrictions, then to such it ought not ture ror the individual is able to overcome. The ques
to be granted. But with these conditions in a charter tion occurs: How can the State so regulate it to pro
each and every shareholder would be sure of receiving duce the best beneficial results and least cost to the
a fixed and fair compensation for his money invested, consumers ?
if such corporation earned enough to meet it. Competition can never be made profitable to those Competition among all kinds and classes of corporacreating it or to those using the fruits of such compe
tions has proved, almost without exception, a pecutition, until it can be demonstrated by actual expe- niary failure. The result has usually been consolidarience that competition is in the line of economy.
tion, au agreement not to compete, or an exterminaIt was said wisely by the great George Stephenson tion of the competing company; and so long as comthat “when combination is possible, competition is im- petition continues these pecuniary disasters will arise, possible." If the Legislature will refuse char- and it cannot be otherwise, since there are numerous ters to competing corporations as far as it is practica- examples in all our cities, especially the corporations ble, and at the same time meet the public exigency, furnishing water and illuminating gas. If one of these and regulate the profits of existing corporations, it companies is only able to supply them at a fixed price, will greatly subserve the public.
the second, third or fourth company in the same localIn 1874, by chapter 372, the Legislature of Massachu- ity cannot supply them as cheaply as the one company. setts consolidated the railroad law, which is substan
Here the pertinent saying of George Stephenson is aptially incorporated into its recently enacted Public Stat- plicable: “When combination is possible, competiutes, and among other provisions is this: “That such tion is impossible." rates of fares, tolls and charges and regulations shall When we hear the cry of monopoly by the citizens, at all times be subject to revision and alteration by
then springs up a competition, and when competition the Legislature, or such officers or persons as the Leg
exhausts its capital they look for relief in consolida. islature may appoint for the purpose, any thing in the tion, an agreement not to compete, or an exterminacharter of any such railroad corporation to the cou
tion of one of the companies. So that the result would trary notwithstanding."
be, if companies are chartered with the provision limPrevious to this enactment the Supreme Court of iting profits, then competition would cease to exist. Massachusetts, in the case of the Commonweulth v.
E. S. WHITTEMORE. Fitchburg R. Co., 12 Gray, 188, decided that “the Leg
SANDWICH, Mass., 1884. islature has in this view and to this end reserved to itself full power to amend or alter the charter of the
RESTRICTED INDORSEMENT. railroad companies and regulate the exercise of powers
UNITED STATES CIRCUIT COURT, S. D. NEW YORK. uuder them.” Herein we have sufficient law and
FEBRUARY 8, 1884. statute to prevent and nullify a burdensome competition.
BANK OF THE METROPOLIS V. FIRST NAT. BANK OF A railroad company is a private corporation, yet is
JERSEY CITY.* for a public use.
An indorsement upon negotiable paper “ For collection; pay In this connection the great case of Dartmouth Col- to the order of A, B.,” is notice to all purchasers that the lege v. Woodward is usually referred to as an import- indorser is entitled to the proceeds. ant authority, but the doctrine therein has been An action for money had and received lies against any one deviated from by legislative enactment and by subse
who has money in his hands which he is not entitled to quent decisions of courts. In this case the question
hold as against the plaintiff; and want of privity between was made whether those acts of the Legislature of
the parties is no obstacle to the action. New Hampshire were valid and binding upon the cor
T law. poration without their acceptance or assent, and not repugmaut to the Constitution of the United States,
*S. C., 19 Fed. Rep. 301.
Francis Schell, for plaintiff.
pose, and for no other. Other authorities in support Varsh, Wilson & Wallis, for defendant.
of this conclusion are Sweeney. v. Eastor, 1 Wall. 166;
White v. Nat. Bank, 102 U. S. '658; Lee v. Chillicothe WALLACE, J. The plaintiff sues
to recover the Bank, 1 Bond, 389; Blaine v. Bourne, 11 R. I. 119; amount of certain checks of which it was the holder Claflin v. Wilson, 51 Iowa, 15. The defendant could and owner, and which came to the defendant's hauds not acquire any better title to the checks or their proand were collected by its sub-agent under the follow. ceeds than belonged to the Newark bank, except by a ing circumstances :
purchase for value, and without notice of any infirmity The plaintiff sent the checks to the Mechanics' Na- in the title of the latter. As the indorsement of the tional Bank of Newark for collection, with the quali- checks was notice of the limited title of the Newark fied indorsement, “ For collection; pay to the order of bank, the defendaut simply succeeded to the rights of O. L. Baldwin, cashier," Baldwin being the cashier of that bank. that bank. The Mechanics' National Bank of Newark It is insisted for the defendant that there was no sent the checks for collection to the defendant, privity between the plaintiff and the defendant repursuant to an existing arrangement between them by specting the transaction, because the defendant was which each sent to the other commercial paper for col- not employed by the plaintiff, but was the agent only lection, it being understood tbat the proceeds were of the Newark bank; and it is argued that if the denot to be specifically returned, but were to be credited fendant is answerable to the plaintiff, so would be to the sending bank by the receiving bank, and enter every other party through whose hands the paper into the general account between them, consisting of might pass in the process of being collected. In answer such collections and other items of account, and offset to this it is sufficient to say that the defendant is sued, any indebtedness of the sending bank to the receiving not as an agent of plaintiff, nor upon any contract liabank. After the defendant received the checks in bility, but upon the promise which is implied by law question the Mechanics' National Bank of Newark be- whenever a defendant has in his hands money of the came insolvent, and suspended payment, being in- plaintiff which he is not entitled to retain as against debted to the defendant under the state of the ac- the plaintiff. It has long been well settled that want of counts between them in a considerable sum.
privity is no objection to the action of indebitatus asUpon these facts it is clear that the relations between sumpsit for money had and received. See note a, Apthe defendant and the Newark bank in respect to paper pendix, 1 Cranch, 367, where the authorities are colreceived by the former from the latter for collection lated. were those of debtor and creditor, and not merely of As against the plaintiff, the defendant bad no right agent and principal (Morse, Banks, 52); and the de- to retain the proceeds of the checks as security or pay fendant, having received the paper, with the right to ment for any balance due to it from the Mechanics' appropriate its proceeds upon general account as a National Bank of Newark after a demand by the plaincredit to offset or apply upon any indebtedness existing tiff. The plaintiff is therefore entitled to judgment. or to accrue from the Newark bank,growing out of the transactions between the two banks, was a holder for
INFANT TRESFASSER- JUMPING OFF STREET value. Since the decision in Swift v. Tyson, 16 Pet. 1,
CAR. it has been the recognized doctrine of the federal courts that one who acquires negotiable paper in pay. RHODE ISLAND SUPREME COURT, JANUARY 9, 1884.* ment or as security for a pre-existing indebtedness is a holder for value (National Bank of the Republic v.
BISHOP V. UNION RAILROAD Co. Brooklyn City, etc., R. Co., 14 Blatchf. 242; affirmed, While two horse cars attached together in charge of a driver 102 U. S. 14), and if the defendant had been justified
on the front platform of the leading car, and drawn by a in assuming that such paper was the property of the
single horse, were driving over the tracks of the company Newark bank, it would have been entitled to a lien upon
in a public highway in the city of Providence from the
stables to the repair shops, a lad six years old, to outstrip it for a balance of account, no matter who was the real
a playmate with whom he was racing, jumped on the owner of the paper. Bank of Metropolis v. New Eng
rear platform of the leading car and soon afterward fell land Bank, 1 How: 234. But the checks bore the in- off or jumped off and was seriously injured. The lad's dorsement of the plaintiff in a restricted form, signify- mother testified that he told her that he fell off, but in iug that the plaintiff had never parted with its title to cross examination, when asked if he did not say that he them. In the terse statement of Gibson, C. J., “a ne.
was afraid the driver would see him and therefore jumped gotiable bill or note is a courier without luggage; a
off, replied “Yes, sir; I think probably he did, but am not
quite sure he told me he fell off.” The driver testified that memorandum to control it, though indorsed uponfit,
he did not see the boys and knew nothing of the accident, would be incorporated with it and destroy it." Overton
which occurred between 2 and 3 P. m., until the evenv. Tyler, 3 Penn. St. 348. The indorsement by plaintiff ing. " for collection was notice to all parties subsequently In an action against the horse car company to recover damdealing with the checks that the plaintiff did not in- ages for the injury, held, that the company was not tend to transfer the title of the paper or the ownership
chargeable with negligence. of the proceeds to another. As was held in Cecil Bank
That the driver of the car was not chargeable with any neg. v. Bank of Maryland, 22 Md. 148, the legal import and
lect of duty.
Hed further, that the company was not bound to employ a effect of such indorsement was to notify the defendant
second man to guard the cars from intrusion during their tbat the plaintiff was the owner of the checks, and that
transit, nor was it under any duty or obligation of care to the Newark bank was merely its agent for collection. the boy. In First Nat. Bank v. Reno Co. Bank, 3 Fed. Rep. 257, A city ordinance provided that “ cars driven in the same dipaper was indorsed, “ Pay to the order of Hethering- rection shall not approach each other within a distance of top & Co. ou account of First National Bank, Chi
three hundred feet except in case of accident, when it may cago," and it was held to be such a restrictive indorse
be necessary to connect two cars together, and also ex
cept at stations." mant as to charge subsequent holders with notice that
Held, that the ordinance applied only to cars going in the the indorser bad not transferred title to the paper or same direction and driven separately, and was inappliits proceeds. Under either form of indorsement the cable to the case at bar. natural and reasonable implication to all persons deal
ETITION for a new trial. Opinion states the case. ing with the paper would seem to be that the owner has authorized the indorsee to collect it for the owner, and conferred upon him a qualified_title for this pur
*To appear in 14 Rhode Island Reports.