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facturing, selling and leasing carpet exhibitors, and that plaintiff's business success and profits have been and are injuriously affected by means thereof. The circulars represent “that plaintiffs, or other irresponsible parties, are sending out circulars professing to have a new Carpet Exhibitor, intending to make a considerable profit before legal proceedings put a stop to their nefarious efforts. That plaintiffs had no right or authority to make, sell or lease any carpet exhibitors, and that any merchant or responsible person, purchasing, leasing and using such exhibitor, is liable in damages and costs of prosecution," etc. That the plaintiffs have been making such exhibitors under a patent issued to plaintiff Peterson, and selling and leasing the same, and that circulars issued by defendants have injured and are injuring their business by debarring parties from buying, leasing and using the same, and that defendants, one or more of them, declare that it is not proposed to uselessly expend money in proceeding legally against the plaintiffs at present, to protect their interest, etc.

It is plain from the case presented upon this motion, that these circulars, sigued and published by the defendants, are calculated to and intended to, and do in fact injure the plaintiff's business. Will the law permit the continuance of such publications?

It is legal and proper for parties claiming rights un

The by-laws of a corporation provided that a transfer of its

stock should be made in writing, and that upon the presentation of such transfer with the certificate to the secretary, a new certificate should be issued to the assignee, and the certificates of stock contained a provision to the like effect. B., the owner of stock, transferred the same with the certificate to F., from whom plaintiff received a transfer with the certificate for value. B. subsequently transferred the stock for value to M., but without the certificate. The corporation issued a new certificate of the stock to M. Held, that the corporation was liable to plaintiff for the value of the stock, even though the record in the books of the company showed title to the stock in M. at the time plaint

iff purchased the certificate. The records of the corporation were not constructive notice

to persons dealing in its stock.

der letters patent, to publish the rights claimed by | ACTION for damages by reason of the wrongful

them, and to issue notice and warning of prosecution of all parties who violate the rights secured by such patent, is done in good faith, and the court will not restrain publications and circulars of that character. Hovey v. Rubber Co., 57 N. Y. 119.

In this case the plaintiffs claim the right to make and dispose of a carpet exhibitor under the patent granted to Peterson, and do not deny the existence or validity of the patent granted to defendant Richardson, or defendant's rights thereunder, to make and dispose of the same. The defendants, however, do deny the validity of plaintiffs' patent and the rights under the same, claimed and exercised by plaintiffs. This court has not jurisdiction to try and determine disputed rights and claims under patents granted by the United States government. But that is not the real question involved in this controversy between the parties. The plaintiffs, while not denying the defendant's rights under this Richardson patent, claim that they have rights under the Peterson patent, and that they are lawfully engaged in the making, selling and leasing exhibitors under their patent, and that the defendants are publishing false and malicious libels concerning the plaintiff's business and their business character and transactions. This the State courts have the right and jurisdiction to restrain. Snow v. Judson, 38 Barb. 210; Thorley v. Massam, a case in the English Chan. Div., and published in 21 Alb. L. J. 171.

The circulars issued and distributed among the parties dealing with the plaintiffs go beyond making a claim, that plaintiffs are infringing upon the rights of the defendants, and giving notice of such infringement and its legal consequences. They substantially charge that plaintiffs are prosecuting a business which is an unlawful interference with the defendant's rights, and are irresponsible, and hoping to make something out of it before legal proceedings stop them, and that their efforts in that direction are nefarious. This language is quite too excessive and ill chosen to convey simple information, that plaintiffs and their patrons have no right to make and sell carpet exhibitors and are liable to the defendants for doing so. At all events I think it quite safe to hold that such language is satisfactory evidence of malice, until the defendants commence an action in good faith against the plaintiffs or o her parties, to vindicate the rights which the defendants claim.

Motion to restrain the publications complained of granted, with ten dollars costs of motion.

issue of a certificate of stock. The facts appear in the opinion.

BONNER, J. This case is one of first impression in this court, and we have endeavored to give it that full consideration in the light of authority, consistently with the pressure of other business, which its importance demands.

It involves the question of the liability of a railroad company for damages for having issued new shares of stock to one claiming under the first shareholder, when the original certificate is still outstanding in the hands of an innocent third party, but who had not presented the same, with his transfer, to the office of the company, previously to the issuance of the new stock.

To determine the liability of the company to some extent necessarily involves the merits of the respective titles of the two claimants, though but one is before the court.

The original certificate of stock issued on April 1, 1861, to J. M. Browder, reads as follows: “Houston & Texas Central R. R. Co., No. 19. Four shares. This certifies that J. M. Browder is proprietor of share No. 917, in the capital stock of the Houston & Texas Central Railway Company, established by Acts of Incorporation passed by the Legislature of the State of Texas, subject to which, and the by-laws, this certificate is transferable by assignment, and upon surrender hereof to the directors, a new certificate of proprietorship of said share will be delivered to the assignee."

Plaintiff, Strange, holds possession of this original certificate for a valuable consideration under the following chain of title: (1) A transfer from J. M. Browder, the original grantee, to E. S. Fletcher, dated March 14, 1862. (2) A transfer from E. S. Fletcher to J. R. Coryell, dated May 10, 1873. (3) A transfer from J.R. Coryell to plaintiff, B. A. Strange, dated August 29, 1873.

The title under which Hutchins holds the new stock is as follows: Browder sold and transferred said certificate of stock on May 6, 1868, for valuable consideration to H. C. Merrimau.

In pursuance of said assignment from Browder, Merriman transferred the stock on the books of defendant's company to A. S. Richardson, and certificate of stock was issued to Richardson on July 27, 1868, and afterward Richardson transferred the stock to W.J. Hutchins, on or about January 14, 1871. The certificate to Richardson was surrendered and a new certificate

for the same stock was delivered to Hutchins, who the stock, would pass by a transfer of the certificate, holds and represents the stock in defendant's com- aud this without it being recorded on the books of the pany

company. Angell and Ames on Corp., $ 353-4; id. 564; The by-law of the company, authorized by its char- New York, etc., R. R. Co. v. Schuyler, 34 N. Y. 30; ter, upon the subject of the transfer of stock, reads: McNeil v. Bank, 46 id. 331 ; Leitch y. Wells, 48 id. 592;

“Sec. 4. The transfers of any share may be made by Bank v. Kortright, 22 Wend. 362; Turnpike Co. v. Feran instrument in writing signed by the owner, which ree, 2 C. E. Green (17 N. J.) 118; Bank v. McElrath, 2 writing may be indorsed on the certificate, or made on Beas. (13 N. J.) 24. a separate paper. The assignee must cause his trans- Such certificate and transfer is prima facie sufficient fer to be presented and delivered to the secretary of to authorize the holder to demand of the company the company before it will entitle him to be recognized the privileges and benefits to which the original holder as the owner, and upon presentation of such transfer, would be entitled. with tit certificate of stock, the secretary shall record This construction of the legal effect of a certificate of the same in books to be kept for that purpose, and stock and its transfer is now required, almost as a called “Report Transfers," and the president and sec- matter of necessity, both for the benefit of corporaretary shall issue new certificate or certificates to the tions and of trade, since stocks in incorporated comassignee as he may be entitled, unless they have notice panies have become such an important basis for specuof fraud or invalidity of said transfer."

lation and collateral security. To hold otherwise Subsequently to the issue of the new stock to Hutch- would virtually withdraw such stocks from all other ins a demand was made to the company by the plaint- than the home market. iff, Strange, for the issuance of stock to him, he having Thus it will be seen that the rights of a bona fide presented the original certificate with the transfer to holder of a certificate of stock are two-fold in their himself, which demand was refused. On the trial be- character. As against the shareholder he would, low a jury was waived and judgment rendered by the whether his transfer be recorded on the books of the court for the defendant.

company or not, have a good title; as against the From the above statement it will be seen that the company, to enable him to demand that he be recogoriginal certificate of stock was transferable by assign- nized as a shareholder and entitled to his rights and ment, either iudorsed on the certificate itself or on a privileges, he should present his certificate and transseparate piece of paper, and was not required to be fer for record in the office of the company. New York, made, as in some cases, on the books of the company. etc., R. R. Co. v. Schuyler, 34 N. Y. 80.

By the terms of the certificate and by-law there was There is a class of cases in which it is held that shares a continual affirmation made by the company that of stock cannot be assigned simply by delivery and they would hold, for the use and benefit of the rightful transfer of the certificate, unless made on the books of owner of the certificate, the amount of stock therein the company, so as to defeat the rights of an attachment specified until it was presented at the office of the or execution creditor without notice by levy at the company for cancellation and new stock issued; and office of the company. the company was estopped from denying this. Hol- These cases generally turn upon some particulr probrook v. Zinc Co., 57 N. Y. 616; In re B. & San F. R. vision of the charter or upon some statute providing R. Co., E. L. R. 32 B. 584.

for such levy. The company is, to a certain extent, the custodian of In the absence of some such positive provision, the rights of the stockholders, and is responsible for which would make a transfer on the books of the coman illegal issuance of stock to their prejudice. Bayard pany an essential condition, as between the shareholder v. Bank, 52 Pem. St. 234; Lovery v. Bank of Balti- and his assignee, to pass title as against such creditor more, Tavey's C. C. R. 310; Bank v. Lanier, 11 Wall. it is believed that by reason of the policy which favors 369; Salisbury Mills v. Townsend, 109 Mass. 121; Pratt the unrestrained transfer of shares of stock, the interv. Taunton Copper Co., 123 id. 110; Loring v. Salisbury est of the creditor should be subordinate to that of Vills, 125 id. 150; Bridgeport Bank v. R. R. Co., 30 such bona fide assignee; and particularly as otherwise Conn. 231; New York & C. R. Co. v. Schuyler, 34 N. such assignee would virtually be without remedy if Y. 30.

the company could protect itself under the levy and It is not intended by this, however, to prescribe an sale. Broadway Bank v. McElrath, 2 Beas. (N. J.) 24. arbitrary rule that the company shall, in any event, Browder, the original shareholder, testified that he without being in default, as by negligence or fraud, be placed his certificate of stock with a blank transfer, liable for the issuance of the stock to any other party executed by him thereon, into the hands of Fletcher than the holder of the certificate, but that it takes the for the purpose of effecting a sale. Having thus risk, if issued without due precaution, that the cer- given to Fletcher possession of the original certificate tificate may be presented by some one having the su- with the external indicia of ownership and the right perior title.

of disposal, Fletcher's subsequent sale of it, under The non-production of the original certificate of which plaintiff, Strange, claims, clothed him with the stock was notice to the company that such superior apparent legal title. The rights of Strange, if bona fide, title might be in a third party. New York, etc., R. R. do not depend upon the actual title or authority of Co. v. Schuyler, 34 N. Y. 81; Bayard v. Bank, 52 Penn. Fletcher to sell, but upon the act of Browder giving St. 235.

the apparent authority and which would estop him A provision for the record of the transfers of certi- and his assignee. Salters v. Everett, 20 Weud. 278; ficates, to be made upon the books of the company, as MeNeil v. National Bank, 46 N. Y. 325 ; Bridgeport required by the act of December 19, 1857 (P. D., art. Bank v. R. R. Co., 30 Conn. 231; Turnpike Co. v. Fer4909), was intended for the benefit of the company, so ree, 2 C. E. Green (N. J.) 117; Holbrook v. Zinc Co., 57 that it might know, by ready reference, who were N. Y. 617. legal shareholders, who were entitled to vote at its The title of Strange, however, was subject to be demeetings, receive dividends, etc., and to whom it feated by a superior title in Browder or his assignee, could safely issue new stock. Bank v. Kartright, 22 if it could be shown that Strange purchased either Wend. 362; Broadway Bank v. McElrath, 2 Beas. (N. with notice of it or without payiug a valuable consid. J.) 36.

eration therefor. It is uncontradicted, both that Although the certificate was not the share of stock Strange was a purchaser for value and without actual itself, it was what the company constituted the visible notice, and it remains to inquire whether he can be representation of it; and as between the shareholder charged with constructive notice. and his assignee, the equitable, if not the legal title to So far as it appears, either from any public statute or


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the charter or any authorized by-law of the company, Life Ins. Co., 42 N. Y. 54. In Woodworth v. Bennett, the books of the company are not made to operate as 43 N. Y. 273, it is recognized that if an illegal and void notice of ownership further than for the use and ben- contract be so fully executed as that a demand conefit of the company itself. As held by Chief Justice nected with it is capable of being enforced at law withTaney in Lowery v. Bank of Baltimore, a purchaser of out aid from the illegal transaction, the claim will be stock is not bound to look beyond the certificate or sustained, citing Chitty on Cont., 657 ; Tenaut v. Elto examine the books of the corporation to ascertain liott, 1 B. & P. 3; Merritt v. Millard, 4 Keyes, 208. the validity of a transfer, as a different rule would But here plaintiff never had such a right or interest in greatly impair the value of stock and would seri- the property as that without proof of the contract he ously disturb the usages of trade and the estab- could have shown himself entitled to have immediate lished order of business. Taney's C. C. R. 310; Salis- possession of it. Cases also cited, Montgomery v. bury Mills v. Townsend, 109 Mass. 115. Hence these United States, 15 Wall. 395; Spratt v. United States, records are not constructive notice to third parties 20 id. 459; Whitfield v. United States, 92 U. S. 165; dealing in certificates of stock, and were not such no- Disman v. United States, 93 id. 605. The question in tice to Strange. Ou the contrary, it may be said that this case is not a Federal one, and this court is not the company, by the terms of the certificate to Brow- bound to follow United States Supreme Court decisder and of their own by-law, were, by the non-pro- ions when by so doing it departs from what is recog. daction of this certificate at the time they issued the nized as law in this State. Judgment affirmed. Clemnek stock to Richardson, who seems to have been ents, appellant, v. Yturria. Opinion by Folger, C. J. its secretary, charged with notice that the original [Decided June 1, 1880.] certificate was outstanding and may have then already

WILL -CONSTRUCTION OF-GIFT TO A AND passed or might subsequently pass into the hands of an

CHILDREN OF B - WHEN DONEES TAKE PER STIRPE — innocent holder for value. This, we think, was under INTENTION. — Testator had five children, Irene, Isathe evidence in this case such a dereliction of duty on

bella, Anita, Joseph and Henry. Irene died leaving the part of the company, and such breach of their con

five children; Isabella died leaving one child. His tract as contained in the certificate which they had

will made these bequests: "To my daughter Anita, permitted to be thrown upon the market, and to

$50,000" during life, with the power of giving at death, which they had invited confidence, as to make the

by will, the principal “to her husband or the children company responsible to Strange, who held the posses.

of Irene. "To the children of Irene, $50,000.” “To sion of it by the older title for a valuable consideration

Henry, $25,000.” “To Joseph, $5.” The testator then and without notice of any defect.

provided that if there should be a remainder, “I wish We are of opinion that under the law, as applied to

the same to be divided equally between Anita, the the evidence, there was error in the judgment for

children of Irene, the son of Isabella, and Henry." which it should be reversed and the cause remanded.

Held, that the testator showed an intention that the

children of Irene should take as a class and not as inNEW YORK COURT OF APPEALS ABSTRACT.

dividuals, and that the residuary fund should be

divided per stirpe and not per capita, among those PUBLIC POLICY — CONSTRUCTIVE POSSESSION

named. Iu 2 Powell on Devises, 331, it is said that

where a gift is made to a person described as standing PENDENT ON CONTRACT VOID BY – DEALING3 BY CITI

in a certain relation to the testator and to the children ZES WITH PUBLIC ENEMY - TROVER - FEDERAL

of another person standing in the same relation, as "to QUESTION. – Plaintiff claimed the right of possession

my brother A and the children of my brother B," A of certain cotton which was in defendant's hands.

only takes a share equal to one of the children of B, The right of plaintiff came thus: By virtue of a con

and this position is abundantly sustained by authority tract made between plaintiff, then a citizen of the

of English cases (Bluckler v. Webb, 2 P. Wms. 383; United States, and the Confederate power, then at

Dowding v. Smith, 3 Beav. 541; Lender v. Blackmore, war with the Cnited States, this cotton was to be de

1 Sim. 626), and to some extent by the courts of this livered to plaintiff in consideration of goods contra

country. But the rule referred to has, in modern band of war, furnished by him to the Confederate

times, been applied with reluctance, by some courts power. This cotton was set apart by the Confederate

because it has become a rule of property, and by others authorities for plaintiff and plaintiff's mark put upon

out of deference to its supposed authority, but in many, it at San Antonio, Texas, by his agent, but he never

if not in all cases, with open protest; while by others had actual possession of it there. It was while there

it has been wholly rejected. Minter's Appeal, 40 Peun. and after it left there still in the actual care, control

St. 111; Raymond v. Hillhouse (Coun.), 19 Alb. L. J. 522. and custody of the Confederate power, though a bill

Wherever the rule is adopted it is also held that it is of lading thereof was delivered to plaintiff. Defendant obtained the cotton from one who obtained it from

to be governed by the context, and as is said, will

yield to a very faint glimpse of a different intention. Confederate military officers in whose possession it

2 Jarm. on Wills (1st Am. ed.), 112; Clark v. Lynch, 46 was. Held, that plaintiff could not show a construct

Barb. 69; Collins v. Hoxie, 9 Paige, 81; Brett v. Horire possession of the cotton except by establishing the

ton, 5 Jurist, 696; Roper on Legacies, 159; Lockhart v. contract by which he obtained title, and that contract

Lockhart, 3 Jones' Eq. (N. C.) 205; Balcom v. Haynes, being invalid, plaintiff could not maintain trover

96 Mass. 204. Here the intention is clear to give to the against defendants for such cotton. The contract by

children of Irene as a class. This construction also which plaintiff became entitled to the cotton was one grossly against public policy and void. Judicial aid

assimilates with the provisions of the statute of diswill not be given to enforce such a contract nor to

tributions, and accords with the general justice of the

law. Judgment affirmed. Ferrer et al., appellants, v. maintain a claim that rests solely npon it. The proof

Pyne et al. Opinion by Danforth, J. of the contract and that the cotton sued for was the

[Decided June 1, 1880.] subject-matter thereof does not make out a right to take immediate possession of the property, for the USURY -- WILL NOT BE IMPLIED WHERE NO AGREEcontract is void and of itself gives no right that the MENT THEREFOR EXISTS -- COMMISSIONS. - G. was inlaw will recognize. A claim that the contract was exe- debted to S. in the sum of $172.45 on two notes which cuted will not aid plaintiff, although there are cases had been placed in the hands of R., an attorney, for wbere it is indicated that rights may arise from a con- collection. An arrangement was made between G. tract void as against public policy, where the contract and S. for a loan by the latter to the former of $1,500 bas been carried out by the parties. Robinson v. Int. on bond and mortgage. Nothing was said or agreed


upon as to the rate of interest. The bond and mort- for the possession of a small piece of land, upon and gage were executed and delivered by G. at the office of over which the wall of defendant's house stood and R., without words or parley. A statement was there projected about two inches. Plaintiff's house stood so made out showing the amount due on the notes, $172, close to defendant's house that it was impossible to go and an attorney's bill made by R. to G. in items, between them and remove or cut off the wall; but the amounting to $230.45, receipted by R. and with a check sheriff cut off the portion of the foundation wall not for $1,097.10, drawn by S., was handed to G. as covering between the buildings, and made return that he delivthe $1,500. One item in the bill of R., to wit: "Com- ered possession of the property to plaintiff, as commissions for obtaining loan $150,” was objected to by manded in the writ. Held, that the sheriff had done all G. S. told him “it was all right, it was cheap enough, that was in his power to deliver possession of the prophe could not do any better.Held, that even if the erty, and the return was true. See 3 Bl. Com. $150 retained as commissions was never paid by S. to 412; Adams' Eject., by Tillinghast, 342; Jackson v. R. there was no usury in the contract. Under the Hariland, 13 Johns. 229; 5 Little (Ky.) 187. The sheriff agreement for a loan G. was entitled to the whole would not be justified in entering defeudant's cellar $1,500 and if S. wrongfully retained $150, under a false for the purpose of removing the projecting wall so that pretense, an action would lie by G. against him for it should not extend over the line. See Curtiss v. Hubthat sum.

There was no intent on the part of G. to bard, 4 Hill, 437. It being physically impossible for the pay usury; no expectation on his part that S. should sheriff to take actual possession lawfully, he was exhare usury.

If the attorney without right, or S. by cused from making any further delivery. Plaintiff, by false pretense, deprived G. of the money due to him, building his house so close to defendants, obstructed it was by virtue of no agreement and so there could and prevented the sheriff from cutting or removing the be no usury.

You may sometimes, it is said, waive a wall. In a similar case the court declined to instruct tort and imply an agreement, but from a fraud you can- the sheriff as to how he should execute the writ. Falnot imply or import a term into a valid agreement for vey v. Elliott. Opinion by Beckwith, J. the purpose of rendering that agreement void. Judg

INJUNCTION - STREET RAILROADS.— A preliminary ment reversed and new trial granted. Guggenheimer,

injunction will be granted to restrain a street railroad appellant, v. Geiszler et al. Opinion by Danforth, J. [Decided June 1, 1880.]

company from running its cars upon rails laid in the street without making compensation to the owners of

the fee, or taking proceedings under the statute to acBUFFALO SUPERIOR COURT.

quire the same. And an injunction will not be refused

merely because the defendant laid its tracks in good SPECIAL TERM ABSTRACT.

faith, supposing it was with the plaintiff's assent, and

the city had commenced proceedings to acquire the AMENDED ANSWER — SHAM AND FRIVOLOUS.- The

fee, and the defendant offers to give security to take right to serve an amended answer within twenty days

proceedings forthwith to acquire the fee and pay for after service of the original answer, is an absolute one.

the same, in case it should be ultimately decided that And the defendant alone is, in the first instance, but

it has not the right to occupy the street. Payment to subject to the judgment of the court, to decide what

the owner for the interest in his lands appropriated the amended answer shall be. Plaintiff has no more

for the use of the railroad is a condition precedent to right to decide that it contains no substantial amend

lawful occupancy. Blodgett v. Utica & Black River ment, and therefore to reject and disregard it, than he

R. Co., 64 Barb, 580; Sixth Ave. R. Co. v. Kerr, 72 N. has to decide that the original answer is a mere sham,

Y. 333. But an entry by a railroad company under or frivolous and therefore to disregard it and enter

peculiar circumstances of disputed right or mistake judgment. Griffin v. Cohen, 8 How. 453; Burrall v.

will not be interfered with where it offers to give seMoore, 5 Duer, 651; Rogers v. Rathbun, 8 How. 466;

curity to make compensation forthwith to the owner Strout v. Curran, 7 id. 36. But if the amended answer

of the lands taken. Plaintiff was pot bound, though is served immediately before the time fixed for the

aware that defendant was constructing its tracks, to trial, and it is manifest that the amendments are im

demand compensation, or make any protest against material and merely colorable, and that it is resorted to

the work. Christiansen v. Sinaford, 19 Abb. 223; Meronly as a device to put the cause over the trial term,

iam v. Boston, 117 Mass. 241. The violation of a man's plaintiff my disregard it and proceed to trial. Vanderbilt v. Bleeker, 4 Abb. 289. A verified answer can

right of property is an injury, and where the right is

clear the minuteness of his damages will not be connot be stricken out as sham or false. Wayland v.

sidered. Ellicottville Plankroad Co. v. Buffalo, etc., Tysen, 45 N. Y. 281; Thompson v. Erie R. Co., id.

R. Co., 20 Barb. 614; Clinton v. Myers, 46 N. Y. 511. 468. The Code ($ 537) allows a pleading to be stricken

A parol license given by the owner of land to a railroad out as frivolous only where it is wholly frivolous and a

company to occupy the land for its road, though fol. final judgment can be given upon it. Where a part of

lowed by the expenditure of money in the construcan answer is held good, and there are issues remaining

tion of the road, is revocable. Murdock v. Prospect to be tried, no part of the answer can be stricken out

Park, etc., R. Co.,73 N. Y. 579. Buffalo City Cemetery as frivolous. Fettretch v. McKay, 47 N. Y.426; Strong

v. Buffalo East Side Street R. Co. Opinion by Beckv. Sproul, 53 id. 497. Becker v. Weisner. Opinion by

with, J. James M. Smith, J.


DORSEMENT.- Plaintiff delivered to S. a horse, under TICE COURT.— Rule 5 of the general rules of practice,

an agreement that the title should pass when he deliv. providing that in no case shall an attorney be surety on

ered to plaintité his note for the price, indorsed by any undertaking or bond required by law, or by the defendant. S. made out his note payable to “Wm. rules, or by any order of a court or judge, in any ac

Connor," - that being the name both of defendant tion or proceeding, does not apply to justices' courts,

and his father - indorsed it, presented it to plaintiff and therefore an undertaking given to the justice on

and informed him that the indorsement was made by appeal for a new trial is regular and valid, though the surety is an attorney. Lawler v. Van Aernam. Opin- demanding defendant's indorsement. They then

defendant's father, but plaintiff refused to receive it, ion by Beckwith, J.

called upon defendant, and s., in plaintiff's presence, EJECTMENT — EXECUTION OF WRIT - LAND LYING informed defendant of the sale of the horse, eto., and BETWEEN HOUSES IN CLOSE PROXIMITY. - Plaintiff also told him that the indorsement was made by his recovered a judgment in ejectment against defendant father. Defendant, upon the faith of this represents

tion, thereupon indorsed the note. Held, (1) that the

FINANCIAL LAW. plaintiff parted with value on the faith of the indorsement. Russell v. Minor, 22 Wend. 659; Leven v. Smith, 1 Denio, 571. (2) That he was not affected by

NEGOTIABLE INSTRUMENT - PRESENTMENT AND NOthe false representations. It was defendant's duty to

TICE BY A DISQUALIFIED NOTARY — EVIDENCE — PROascertain whether the indorsement was genuine. He

TEST OF PROMISSORY NOTE UNNECESSARY,-When in an relied on that; plaintiff did not, but relied on defend action against an indorser upon a promissory note it was ant's indorsement. Each indorser warrants, law,

shown that the notary who presented and protested to bis indorser, that the antecedent signatures are

the note was disqualified from holding the office of genuine, though he may have indorsed for accommo

notary, held, that he was authorized as an individual to dation. Coggill v. Am. Exch. Bank, 1 Comst. 113.

present the note for payment and give the proper Monnen v. Conner. Opinion by James M. Smith, J.

notice, and the fact that he had done so could be shown

by his testimony as a witness. Whether the notary REMOVAL OF CAUSES TO FEDERAL COURTS. – The

was competent to act as a notary or not, he was ceraverment in a petition for the removal of a cause to tainly not incompetent as a witness. A notarial prothe Federal court as to the citizenship of the parties, test of a promissory note is not necessary. It is only cannot be controverted. Osgood v. Chicago R. Co., 6 important as prima facie evidence of demand on the Biss. 330, approved. See, also, articles on removal of maker, and notice to the indorsers. Here the note was causes by Judge Dillon and R. McP. Smith, in 2 So. duly presented for payment at the banking house Law Rev. 282; 3 id. 227. Clark v. Opdyke, 10 Hun, where it was made payable on its face, and payment 333; De Camp v. N. J. Mut. Ins. Co., 2 Sweeny, 481; refused. The notary testified that he had given the Orosco v. Guzleardo, 22 Cal. 83; Goddard v. Bosson, defendant notice of non-payment on the day of proSup. Ct. Kans., 18 Alb. L. J. 512, and articles by Chan- | test, and that subsequently the defendant admitted its cellor Cooper iu 3 So. L. Rev. 3, dissented from. receipt. This was better evidence than the certificate Dickey v. Robbins. Opinion by Beckwith, J.

of the same notary under his official seal. Pennsylvavia Supreme Court, March 29, 1880. Falk v. Lee.


IN PROMISSORY NOTE-NOTICE. - In a note otherwise

negotiable, and containing a promise to pay interest at CONTRABAND LAW – BUSINESS PRIVATI AND PUB

twelve per cent after maturity, was this stipulation : LICI JURIS. — A business privati juris cannot be de- "If this note is not paid at maturity, the same shall clared by the courts publici juris, and this principle bear twelve per cent interest from date.” Held, that is not affected by the circumstance that it is carried on

these stipulations were tantamount to a promise to pay by a 'corporation. The business of warehousiug and interest from date until paid, at twelvo per cent, with compressing cotton is privati juris. It will not, in the

a proviso that if promptly paid at maturity no interest absence of legislation, become publici juris by reason

would be exacted; that they did not destroy the negoof its extent. The business is free to every one who tiability of the paper, nor impart notice to a bona fide wishes to engage in it. No grant or franchise need be purchaser for value before maturity, of usury in the obtained from the State to authorize those desiring to inception of the note. The words mentioned do not do so to embark in this character of business. It is leave uncertain either the fact, the time, or the amount not one of the employments wbich the common law

of payment. Indeed, up to and including the matudeclares public. Coggs v. Barnard, 2 Ld. Raym. 99; rity of the notes, they are entirely without force. 2 Parsons on Cont. 139; Story on Bail., § 442. Ladd v.

They become operative only after the notes are disSouthern Cotton Press & Manufacturing Co. Opinion honored and have ceased to be negotiable, and then by Moore, C. J.

there is no uncertainty in the manner or extent of [Decided March 26, 1880.]

their operation. They create, as it were, a penalty for

non-payment at maturity, and a penalty the amount CONSTITUTIONAL LAW – EMINENT DOMAIN — RAIL

of whicb is definite, certain and fixed. In this respect, WAY TRACK IN HIGHWAY,- - In a case where it was

they are even less objectionable than the stipulation claimed by the owner of lots abutting on a street the

concerning attorney fees, which was considered in the fee of which street was in the State, that he was enti

case of Seaton v. Scovill, 18 Kans. 433, for there the tled to compensation for the use of the street by a

amount was not fixed and named, but the stipulation railroad company, held, that the use of a street for a

was for reasonable attorney fees. See, also, 1 Daniel railroad is not ordinarily inconsistent with its con

on Neg. Insts., S$ 53, 54, 61, 62; Tholen v. Duffy, 7 Kans. tinued use for the common purposes of a street. The 410; Gould v. Bishop Hill Co., 35 III. 325. Kansas Suauthorities are numerous and conclusive, that such an addition to the use of a street, the fee being in the Opinion by Brewer, J.

preme Court, January Term, 1880. Parker v. Plymell. public, if authorized by the Legislature, gives the lotowner no right to compensation, although his easement SAVINGS BANK - WHAT IT IS -- RIGHTS OF DEPOSITin the street be thereby partially impaired and his lots rendered less valuable. The regulation or enlarge- ITS. — A savings bank, under a special charter, was ment of the use of the street, the property of the authorized to receive and invest deposits for the benefit State, by the Legislature, is not a taking of property of the depositors, the income or profit to be divided within the meaning of the constitutional provision in among them, after reasonable deductions for necessary respect thereto, although the lot owner may thereby expenses, the principal to be repaid to the depositors suffer incidental or consequential inconvenience or at such times and with such interest and under such injury. Kellinger v. Forty-Second St. R. Co., 50 N. Y. regulations as the board of managers should from timo 208; People v. Kerr, 27 id. 188; 37 id. 357; Hatch v. to time prescribe. Under their regulations they not Vermont Cent. R. Co., 28 Vt. 142; N. Y. & Elm. R. Co. only received deposits participating in the profits and v. Young, 33 Penn. St. 180; Shearman & Redf. on not payable except on thirty days' notice, but also Neg., 8 370; 2 Dill, on Munic. Corp., $ 564; Cooley on another kind of deposits (called by them “special deConst. Lim. 542 et seq.; 1 Thomp. on Neg. 358; Wood on posits") which were not to participate in the profits, Nuis., SS 753, 755. Houston & Texas Central Railroad and were to be repaid (not redelivered) to the deposite Co. v. Odom. Opinion by Gould, J.

ors, without any preliminary notice. Both kinds of (Decided May 18, 1880.]

deposits were intermingled in the funds of the bank,



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