Gambar halaman
PDF
ePub

judge submitted to the jury, remarking at the same time that by the furnishing the labels with the liquors the defendants acquired the right to use the copyright to that extent, without which or some equivalent permission or license, they would have had no such lawful authority.

Pursuant to these suggestions the jury were directed to ascertain whether the liquors were worth more to the defendants on account of the labels, and whether the labels were included in the contract, and they were instructed that if they found affirmatively in respect to both of these inquiries then the receipt and acceptance of the labels as alleged took the case out of the statute of frauds, because then there was a receipt and acceptance by the defendants of a portion of the things purchased.

Appropriate instruction was also given to the jury in respect to the subsequent letter sent by the defendants to the plaintiffs, and the jury were told by the presiding judge that if they found, under the instructions given, that the defendants received and accepted a part of the things purchased, then the contract was made valid as a New York contract, and that their verdict should be in favor of the plaintiffs. Currie v. Anderson, 2 Ell. & Ell. 598. That if the contract was not made valid by the acceptance and receipt of the labels, nor by the letter exhibited in the record, then it was a Michigan contract, and their verdict should be for the defendants. Meredith v. Meigh, 2 El. & Bl. ; Castle v. Snowden, 6 Hurlst. & Norm. 835; Law Rep., 1 C. P. 5.

Controlling authorities already referred to show that the question whether the goods or any part of the same were received and accepted by the purchaser is one for the jury, to which list of citations many more may be given of equal weight and directness. Just exception cannot be taken to the form in which the question was submitted to the jury, and the record shows that the verdict was for the plaintiffs, and that the jury found, in response to the fifth question, that the label added to the value of the liquors, and that they formed part or parcel of the price. Jackson v. Lowe, 7 Moore, 227.

Where goods are purchased in several parcels, to be paid for at a future day, the whole, within the meaning of the statute of frauds, constitutes but one contract, and the delivery of part to the purchaser is sufficient to take the case out of the operation of the statute of frauds. Mills v. Hunt, 20 Wend. 431.

Apply the finding of the jury in this case to the conceded facts and it shows that the defendants were in the situation of a purchaser who goes to a store and buys different articles at separate prices for each article, under an agreement for a credit as in this case, accepting a part, but leaving the bulk to be forwarded by public conveyance. Frequent cases of the kind occur, and it is well-settled law that the delivery of a part of the articles so purchased, without any objection at the time as to the delivery, is sufficient to take the case out of the statute of frauds as to the whole amount of the goods. Mills v. Hunt, 20 Wend. 434.

The delivery in such a case, in order that it may have that effect, must be made in pursuance of the contract, the question whether it was so made or not being one for the jury, but if they find that question in the affirmative, then it follows that the case is taken out of the statute of frauds. Van Woert v. Railroad, 67 N. Y. 541.

Parol evidence is admissible to show what the circumstances were attending the contract and to show the receipt and acceptance in whole or in part of the goods purchased. Tompkinson v. Spraight, 17 C. B. 704; Kershaw v. Ogden, 3 Hurlst. & Colt. 721.

Due acceptance and receipt of a substantial part of the goods will be as operative as an acceptance and receipt of the whole, and the acceptance may either precede the reception of the article or may accompany their reception. 2 Whart. Ev., § 875.

Differences of opinion have existed upon some of these matters, but all the authorities or nearly all concur that the question is for the jury, to be determined by the circumstances of the particular case. 2 Whart. Ev. 875.

Viewed in the light of these suggestions it is clear that the question whether the evidence showed that the case was taken out of the statute of frauds by the acceptance and receipt by the defendants of a part of what was purchased by them, in connection with the letter of the defendants, exhibited in the record, was fairly submitted to the jury, and that their finding in the premises is final and conclusive.

Attempt was also made by the plaintiffs to support the judgment upon the ground that the defendants were estopped to set up the statute of frauds as a defense, in view of the fact that they had received the liquors and sold the same for their own benefit, but it is not necessary to examine that proposition in view of the conclusion that the case is taken out of the operation of the statute by the other evidence and the finding of the jury. Nor is it necessary to give any consideration to the proposition that the act of the State of Michigan to prevent the manufacture and sale of spirituous and intoxicating liquors as a beverage is repealed, for the same reason, and also for the additional reason that the repealing clause saves "all actions pending and all causes of action which had accrued at the time" the repealing act took effect. Sess. Acts, 1875, p. 279.

Having come to the conclusion that the case is taken out of the statute of frauds, it is not deemed necessary to give the other assignments of error a separate examination. Suffice it to say that the court is of the opinion that there is no error in the record.

Judgment affirmed.

LIABILITY OF LAND-OWNER FOR IMPROPER USE OF LAND.

ENGLISH COURT OF APPEAL, MARCH 1, 1878. HURDMAN V. NORTH-EASTERN RAILWAY COMPANY, 38 L. T. Rep. (N. S.) 339.

A man who places an artificial mound upon his property and thereby causes rain-water, percolating naturally, to come on to the property of his neighbor, is liable to the latter in respect of damage so caused.

A statement of claim alleged that defendants, being owners of property adjoining the plaintiff's, placed a quantity of soil and rubbish upon and against their wall, and thereby raised the surface of defendants' land above the level upon which plaintiff's house was built; that the rain which fell upon the said soil, etc., percolated through the said wall into the plaintiff's house, and caused damage. In the alternative it was alleged that the defendants negligently and improperly placed the soil, etc., upon their land, and negligently and improperly built the wall, so that the rain water percolated through the wall and injured plaintiff's house. On demurrer, it was held (affirming the decision below), that the statement of claim stated a good cause of action. PPEAL from a decision of Manisty, J., giving judgment for the plaintiff on a demurrer.

Statement of claim: 1. At the time of and before the commencement of the damage hereinafter mentioned, the plaintiff was and he still is possessed of a house known as No. 16 Lodge terrace, Sunderland. 2. The defendants then were and still are possessed of a certain close of land adjoining the said house of the plaintiff. 3. The defendants placed and deposited in and upon the said close of the defendants, and upon and against a wall of the defendants which adjoins and abuts against the house of the plaintiff, large quantities of soil, clay, limestone, and other refuse, close to and adjoining the said house of the plaintiff, and thereby raised the surface of the defendants' land above the level of the land upon which the plaintiff's house was built. 4. The rain which fell upon the said soil, clay, limestone, and other refuse, so placed as aforesaid, oozed and percolated through the said wall of the defendants into the said house of the plaintiff, and the plaintiff's house thereby became wet, damp, unwholesome and unhealthy, and less commodious for habitation. 5. By reason of the said acts of the defendants the walls of the said house of the plaintiff became and were very much injured, and the paper and plaster upon the said walls have been destroyed. 6. In the alternative the plaintiff alleged that the defendants so negligently and improperly placed and deposited the said soil, clay, limestone, and refuse, upon the defendants' said land, that the rain water falling thereon oozed and percolated through and into the plaintiff's house, whereby the plaintiff's house was damaged as before mentioned.

The defendants put in a statement of defense, dealing with the allegations in the amended statement of claim. They also demurred to the whole claim, on the ground" that the acts, matters and things alleged to have been done by the defendants do not give rise to any right of action on the part of the plaintiff." The plaintiff joined issue.

On the argument of the demurrer Manisty, J., gave judgment for the plaintiff and against the demurrer. The defendants appealed.

Herschell, Q. C., and Gainsford Bruce, for the defendants, cited Wilson v. Wadden, 35 L. T. Rep. (N. S.) 639; L. Rep., 2 Sc. App.95; Fletcher v. Rylands, 19 L. T. Rep. (N. S.) 220; L. Rep., 3 H. L. 330; Baird v. Williamson, 15 C. B. (N. S.) 376; Smith v. Kenrick, 7 C. B. 564; Crompton v. Lea, 31 L. T. Rep. (N. S.) 469; L. Rep., 19 Eq. 115; 44 L. J. 69, Ch.; Smith v. Fletcher, 31 L. T. Rep. (N. S.) 190; L. Rep., 9 Ex. 64; Nicholls v. Marsland, 35 L. T. Rep. (N. S.) 725; L. Rep., 10 Ex. 225; and 2 Ex. Div. 1.

Waddy, Q. C., and J. Edge, for the plaintiff.

COTTON, L. J. In this case plaintiff has brought an action for injury alleged to have been caused to his house, which abuts on a wall of the defendants, by certain acts done by the defendants on their own land. The question is raised on demurrer to the statement of claim, and the question, therefore, is whether that alleges a good cause of action. For the purposes of our decision we must assume that the plaintiff has sustained substantial damage, and we must construe the statement as alleging that the surface of the defendants' land has been raised by earth and rubbish placed thereon, and that the consequence of this is that rain water falling on the defendants' land has made its way through the defendants' wall into the house of the plaintiff, and has caused the injury complained of. The question is, are the defendants, ad

mitting this statement to be true, liable to the plaintiff? and we are of opinion that they are. The heap or mound on the defendants' land must, in our opinion, be considered as an artificial work. Every occupier of land is entitled to the reasonable enjoyment thereof. This is a natural right of property, and it is well established that an occupier of land may protect himself by action against any one who allows any filth or other noxious thing produced by him on his own land to interfere with this enjoyment. We are further of opinion that, subject to a qualification to be hereafter mentioned, if any one by an artificial erection on his own land causes water, even though arising from natural rainfall only, to pass into his neighbor's land, and thus substantially to interfere with his enjoyment, he will be liable to an action at the suit of him who is so injured, and this view agrees with the opinion expressed by the Master of the Rolls in the late case of Broder v. Saillard, L. Rep., 2 Ch. Div. 700: "If there were no authority on the question I should have felt no difficulty about it, because I take it that the law is this, that a man is eutitled to the comfortable enjoyment of his dwellinghouse. If his neighbor makes such a noise as to interfere with the ordinary use and enjoyment of his dwelling-house, so as to cause serious annoyance and disturbance, the occupier of the dwelling-house is entitled to be protected from it. It is no answer to say that the defendant is only making a reasonable use of his property, because there are many trades and many occupations which are not only reasonable, but necessary to be followed, and which still cannot be allowed to be followed in the proximity of dwelling-houses, so as to interfere with the comfort of their inhabitants. I suppose a blacksmith's trade is as necessary as most trades in this kingdom; or I might take instances of many noisy and offensive trades, some of which are absolutely necessary, and some of which, no doubt, may not only be reasonably followed, but to which it is absolutely and indispensably necessary for the welfare of mankind that some houses and some pieces of land should be devoted; therefore I think that is not the test. If a stable is built, as this stable is, not as stables usually are, at some distance from the dwelling-houses, but next to the wall of the plaintiff's dwelling-house, in such a position that the noise would actually prevent the neighbors sleeping, and would frighten them out of their sleep, and would prevent their ordinary and comfortable enjoyment of their dwelling-house, all I can say is, that it is not a proper place to keep horses in, although the horses may be ordinarily quiet." I have limited this statement of liability to liability for allowing things in themselves offensive to pass into a neighbor's property, or for causing by artificial means things in themselves inoffensive to pass into a neighbor's property to the prejudice of his enjoyment thereof, because there are many things which when done on a man's own land (as building so as to interfere with the prospect, or so as to obstruct lights not ancient) are not actionable even though they interfere with a neighbor's enjoyment of his property. But it is urged that this is at variance with the decision that if, in consequence of a mine owner on the rise working out his minerals, water comes by natural gravitation into the mines of the owner on the deep, the latter mine owner cannot maintain any action for the loss which he thereby sustained. But excavating and raising the minerals is

considered the natural use of mineral land, and these decisions are referable to this principle, that the owner of land holds his right to the enjoyment thereof, subject to such annoyance as is the consequence of what is called the natural user by his neighbor of his land, and that when an interference with this enjoyment by something in the nature of nuisance (as distinguished from an interruption or disturbance of an easement or right of property in ancient lights, or the support for the surface to which every owner of property is entitled) is the cause of complaint, no action can be maintained if this is the result of the natural user by a neighbor of his land. That this is the principle of these cases appears from the case of Wilson v. Waddell, L. Rep., 2 App. 99, and from what is said by the Lord Chancellor in Rylands v. Fletcher, L. Rep., 3 H. L. 328. Moreover, the cases referred to have laid down that a mine owner is exempt from liability for water which, in consequence of his works, flows by gravitation into an adjoining mine, only if his works are carried on with skill and in the usual manner, and in the present case it is stated that the defendants have conducted this operation negligently and improperly. The decisions, therefore, as regards the rights of adjoining mine owners do not enable the defendants to discharge themselves from liability. It was also argued that a land-owner, who, by operations on his own land, drains the water percolating underground in the property of his neighbor, is not liable to an action by the man whose land is thus deprived of its natural moisture, and this, it was argued, was inconsistent with a judgment for the plaintiff on a statement alleging as a cause of action an alteration in the percolation of water. It is sufficient to say that no one can maintain an action unless there is some injury to something to which the law recognizes his title, and the law does not recognize any title in a land-owner to water percolating through his property underground, and in no definite channel. We are of opinion that the maxim, "Sic utere tuo ut alienum non lædas," applies to and governs the present case, and that, as the plaintiff by his statement of claim alleges that the defendants have by artificial erections on their land caused water to flow into the plaintiff's house in a manner in which it would not, but for such erections, have done, the defendants are answerable for the injury caused thereby to the plaintiff.

RECENT AMERICAN DECISIONS.

in actual possession of part of the tract, is deemed to be in possession of the entire tract described in his deed, up to the division line, there being no actual adverse possession against him. Smith v. McKay (Com.).

DAMAGES.

In case of trespass: cutting of timber: innocent purchaser not liable for impaired value by cutting.-Timber was cut from land of B. by trespassers, who by their labor converted it into cord wood and railroad ties, thus increasing its value three-fold. It was then sold to an innocent purchaser, who was sued by B. for the value of the wood and ties. Whatever might be the rule of damages, as against the wrong-doers, as against innocent purchasers B. cannot recover the value of the timber as enhanced by the labor of the wrong-doers, after it was severed from the realty. Lake Shore & Mich. So. Railway Co. v. Hutchins (Com.).

FRAUD.

Purchase of goods on credit by one without means: when fraudulent and when not so.-A contract for the purchase of goods on credit, made with intent on the part of the purchaser not to pay for them, is fraudulent; and if the purchaser has no reasonable expectation of being able to pay, it is equivalent to an intention not to pay. But where the purchaser intends to pay and has reasonable expectations of being able to do so, the contract is not fraudulent, although the purchaser knows himself to be insolvent and does not disclose it to the vendor, who is ignorant of the fact. Talcott v. Henderson (Court).

PARTNERSHIP.

1. Liability of retiring partner.—A retiring partner remains liable for all the existing debts of the firm, to the same extent as if he had not retired. An agreement between him and the remaining partners, or with the new firm that succeeds, that they will assume and pay all such debts, while valid as between the partners, has no effect upon the creditors of the old firm, unless they become parties thereto. Rawson v. Taylor (Com.).

2. That firm has assets to pay debts does not relieve retiring partner.-R. held the promissory note of the firm of T. G. & Co. After it was given, some members of the firm retired, leaving assets sufficient to pay all debts, and taking the obligation of the succeeding new firm, to pay all debts and save the retiring partners harmless. Held, that unless R., by some valid contract, express or implied, had made himself a party to this new arrangement, or had so acted as to be

SUPREME COURT OF OHIO. SUPREME COURT COM- estopped, his rights on the note against all the memMISSION OF OHIO.*

ADVERSE POSSESSION.

Line fence permitted to be off from line: effect of.Where, by the title deeds of adjoining proprietors of land, the dividing line is left open to be established by a survey or measurement, and is thereafter fixed and marked by mutual agreement between them, and they occupy to such established line for a period sufficient to create title under the statute of limitations, such proprietors will be held to the line so established, although it may not be the true line. Under such agreement, one of the parties, holding under a deed, aud

*To appear in 30 and 31 Ohio St. Reports. From E. Dewitt, Esq., State Reporter.

bers of the old firm remained unchanged; that while, as between the partners themselves, the relation of principal and surety existed, yet, as to the payee of the note, all were principals and joint debtors, although notice of such obligation was brought home to him. Ib.

3. When creditor may release security without impairing rights.-Where the payee of such note has received from the new firm a chattel mortgage of the partnership property, sufficient, if applied, to satisfy the debt, he may, with the assent of the retiring partners, release the mortgage, and return the property or its avails to the new firm, without impairing his rights against all the joint obligors on the note, even though he had such notice of the subsequent contract between the partners. Ib.

RAILROAD.

1. Fencing: where fence division one, company and land-owner under equal duty to keep.-Where a fence constructed by an individual land-owner serves as a partition fence between a railroad track and the inclosed fields of such individual owner, but not so divided that each owner is charged with maintaining in repair a distinct portion thereof, the railroad company and individual land-owner are, each, under equal obligations to keep and maintain the entire fence in repair until so divided. Dayton & Mich. R. R. Co. v. Miami County Infirmary (Com.).

2. When land-owner guilty of contributory negligence. -If the land-owner, knowing the partition fence to be out of repair, turns his stock into a field inclosed by such defective fence, and, by reason of its insufficiency, his stock goes upon the railroad track and is killed by a passing train, run without negligence, such land-owner is chargeable with contributory negligence, and cannot recover for the loss. Ib.

RECENT ENGLISH DECISIONS.
INJUNCTION.

Mere delay not ground for refusing.-Where a plaintiff seeks an injunction in aid of his legal right, relief will not be refused on the ground of mere delay on his part, unless he is barred by the statute of limitations. Ch. Div., March 5, 1878. Fulwood v. Fulwood, 38 L. T. Rep.

LIBEL.

Privilege: anonymous letter: bona fide answer to inquiries.-The defendant, manager of a bank, having been applied to for information respecting the plaintiff, who had had business transactions with the bank in which the applicant was interested, gave to the applicant an anonymous letter, which he had received a year previously, and which contained libelous charges against the plaintiff. Held, that the communication was privileged. Com. Pl. Div., Feb. 20, 1878. Robshaw v. Smith, 38 L. T. Rep. (N. S.) 423.

MORTGAGE.

When mortgagor cannot create charge in his own favor. A mortgagor having an equity of redemption, or an ultimate interest in a fund by the performance of some condition without which he cannot get at it, does not by that condition create a charge in his own favor as against his mortgagee. Ch. Div., Jan. 24, 1878. Saunders v. Dunman, 38 L. T. Rep. (N. S.) 416.

TRADE-MARK.

Bottles indelibly marked with distinctive design: user by rival tradesman for sale of his own production: injunction.-When one trader sells an unpatented production of his own in bottles or casks indelibly marked with his known design, the court will restrain a rival trader from selling a similar production in the same bottles or casks, although the rival trader puts a label of his own thereon. Ch. Div., April 10, 1878. Rose v. Loftus, 38 L. T. Rep. (N. S.) 435.

RECENT BANKRUPTCY DECISIONS.

CONTRACT.

To procure adjudication against firm of one making it valid.-An agreement by a member of a firm to consent, and to procure the consent of his partners to an adjudication against the firm, is valid, and the con

sideration therefor may be recovered. Sup. Ct., Michigan. Sanford v. Huxford, 17 Nat. Bankr. Reg. 385.

DISCHARGE.

Covenant of warranty barred by.-Defendant sold to plaintiff certain premises by warranty deed, and at the same time gave him a writing by which he agreed to pay off a certain mortage which was a lien upon the premises. Defendant was afterward adjudicated bankrupt and received his discharge. Subsequently the mortgage was foreclosed and the premises sold. In an action for breach of warranty, held, that plaintiff should have proved his claim in the bankruptcy proceedings under section 5068 as a contingent debt, and that not having done so, his claim is barred by the discharge. Sup. Ct., Iowa. Parker v. Bradford, 17 Nat. Bankr. Reg. 485.

FRAUDULENT SALE.

Knowledge in vendee must be shown to set aside.-In an action to recover from a vendee goods sold on the eve of bankruptcy, the assignee must establish not only that the bankrupts intended to dispose of their property in fraud of the act, but that defendant knew such to be their intention and guiltily combined and colluded with them to carry it into effect. U. S. Dist. Ct., California. Dickinson v. Adams, 17 Nat. Bankr. Reg. 380.

NATIONAL BANK.

1. Trial of matters affecting, should be in Federal, not State courts.-Where a question arises involving the right of national banks to make loans of a particular character upon mortgage, the assignee should be permitted to litigate such question in the Federal courts, and should not be sent into the State courts to try it on the distribution of surplus moneys in a foreclosure suit, or in a suit brought by the party holding the alleged invalid mortgage. U. S. Dist. Ct., S. D. New York. In re Duryea, 17 Nat. Bankr. Reg. 495.

2. When injunction restraining foreclosure of mortgage will not be set aside contrary to interest of creditors.-The Bowery Savings Bank held a first mortgage on property of the bankrupt which was not contested by the assignee. It commenced foreclosure proceedings which were restrained by injunction of the bankrupt court. On motion to be allowed to proceed with the foreclosure to the entry of judgment, held, that there was no reason for allowing it to do so, as its rights would be fully secured on the distribution of the proceeds of the sale whenever the property should be sold under the direction of the court. The fact that a recovery of the amount of a mortgage in the bankrupt court would be burdened with greater expenses than if the mortgagee were allowed to go on and foreclose will not control the action of the court, where it is obviously for the interest of the creditors that the estate should be administered in the bankrupt court. Ib.

3. Good reason should be shown for sale by assignee at auction. The assignee must, in the present state of the real estate market, show a good reason for an immediate sale before he will be allowed to sell the property at public auction. Ib.

PARTNERSHIP.

Change in firm: construction of agreement: title to property. The firm of J. & S. was dissolved by mutual consent, and the firm property divided, each partner agreeing to pay the debts contracted in respect of the

property received by him. S. sold an interest in the portion received by him to M., with whom he formed the new firm of S. & M., which incurred debts and became bankrupt. Before the adjudication, the property of the latter firm was attached by a creditor of the firm of J. & S. Held, that the property attached was property of the new firm; that the assignee was entitled to possession of it for the purpose of satisfying the creditors of that firm, and that only the balance which might be due to S. after payment of the firm debts and adjustment of accounts between the partners, would be subject to the attachment. U. S. Dist. Ct., California. Crane v. Morrison, 17 Nat. Bankr. Reg. 393.

PETITION.

Estimate of number of creditors for: those less than $250 counted: amendment.- Where the petitioning creditors who hold debts exceeding two hundred and fifty dollars do not represent one-third of all the provable debts, every two hundred and fifty dollar creditor sinks into a common unit in the mass of creditors, and counts but one with the rest. Where the name of a creditor is stated in the petition, asserting a claim by a proper averment, but omitting the amount, the claim may be amended by adding the amount, if done in good faith. U. S. Dist. Ct., W. D. Pennsylvania. In re Blair, 17 Nat. Baukr. Reg. 492.

PREFERENCE.

Creditor not active in proceedings may prove debt: to what cases act applies.- After a recovery against a preferred creditor by the assignee the creditor may prove his debt, if he has not actively assisted in the fraud. The provision of section 12 of the statute of 1874 (Rev. Stats., § 5021) in relation to proof of debt by preferred creditors, applies to cases begun prior to December 1, 1873, as well as to those begun since that time. U. S. Dist. Ct., Massachusetts. In re Black; Ex parte Skilton, 17 Nat. Bankr. Reg. 399.

UNITED STATES SUPREME COURT ABSTRACT, OCTOBER TERM, 1877.

CRIMINAL LAW.

1. Intent: what knowingly and willfully implies.-Doing or omitting to do a thing "knowingly and willfully" implies not only a knowledge of the thing, but a determination with a bad intent to do it or omit doing it. Judgment of United States Circuit Court, Massachusetts, reversed. Felton, plaintiff in error, v. United States. Opinion by Field, J.

2. Presumption of knowledge from business: distilling spirits.-Parties engaged in distilling spirits are presumed to be acquainted with the utensils and machinery used in their business, and with their character and capacities. But the law does not attach culpability and impose punishment where there is no intention to evade its provisions, and the usual means to comply with them are adopted. Ib.

3. What law requires.-All that the law requires of them to avoid its penalties is to use in good faith the ordinary means-by the employment of skilled artisans and competent inspectors to secure utensils and machinery which will accomplish the end desired. If, then, defects should exist, and the end sought be not attained, or defects in the utensils or machinery not then open to observation should subsequently be discovered, the parties are not chargeable with "knowingly

and willfully" omitting to do what is required of them. Ib.

EIGHT HOUR LAW.

--

Federal statute does not apply to employee of contractor with government: privity of contract. By a contract between O. and the United States, O. agreed to furnish the United States, from certain quarries, granite to be delivered at Washington, D. C., to be paid for at specified prices, and to furnish the labor, tools and materials necessary to cut, dress and box the granite at the quarries in such manner as should be directed, the United States agreeing to pay the full cost of said labor, tools and materials, etc., and fifteen per cent addition. A time of delivery was specified, and O. was to forfeit in case of default $100 per day for each day thereafter until delivery. Appellee was employed by O. on the work done under this contract and was paid at the rate of ten hours per day. Held, that there was no privity between appellee and the United States, and he did not work for it and could not, on a claim that he should be paid at the rate of eight hours per day, maintain an action for additional compensation from the United States. Judgment of Court of Claims reversed. United States, appellant, v. Driscoll. Opinion by Swayne, J.

MARITIME LAW.

1. Bottomry bond: may be given upon cargo.-The master of a bark, loaded with sugar, and which had become disabled in a foreign port, in order to procure funds for necessary repairs, executed a bottomry bond upon the bark, cargo and freight. The cargo was insured by the D. Company. On the voyage home the bark was wrecked, but a part of the cargo saved. The D. Company paid the insurance, and the owners of the cargo assigned to the company all their interest in the cargo. In an action by the company against the agent of the bond holder to recover the proceeds of the cargo which had been taken possession of and sold by him, held, that the master had power to hypothecate the cargo, as well as the ship and freight, to enable him to prosecute his voyage, and the agent was entitled to retain the proceeds of the cargo and apply them toward the bond. Judgment of United States Circuit Court, Massachusetts, affirmed. Delaware Mutual

Safety Insurance Co., plaintiff in error, v. Gossler. Opinion by Clifford, J.

2. Discharge of loan by utter loss of vessel: what constitutes utter loss.-The bottomry bond contained a provision discharging the borrowers from liability in case of the "utter loss" of the vessel by the perils of the sea. The vessel was cast ashore, and after being surveyed and found incapable of being repaired, was broken up and the pieces sold. Held, not an utter loss" within the meaning of the provision. Ib.

NATIONAL CURRENCY ACT.

66

Construction of: liberal forfeitures not favored.-The National Currency Act should be liberally construed to effect the ends for which it was passed, but a forfeiture under its provisions should not be declared unless the facts upon which it rests are clearly established. In case of a claim of forfeiture against a bank for taking unlawful interest upon the discount of bills of exchange payable at another place, it should appear affirmatively that the bank knowingly received or reserved an amount in excess of the statutory rate of interest and the current exchange for sight drafts. Accordingly, where it was not shown what the rate of

« SebelumnyaLanjutkan »