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tels" being construed so as to include shares of corporate stock and choses in action. Sims v. Thomas, 12 A. & E. 536, 554; Barrack v. M'Culloch, 3 Kay & J. 110; Stokoe v. Cowan, 29 Beav. 637; Pinkerton v. Manchester & Lawrence Railroad, 42 N. H. 424, 457. This construction has been criticised as too lax and elastic. Doyle v. Sleeper, 1 Dana, 531.

creditors, can it not be treated by them as a nullity? We can see no good reason, if we look simply to the language of the statute, why this view, which is the logical view and the view which obtains in regard to real estate and tangible personal property, should not be taken. Is there any reason why, if we look beyond the statute to the character of the property, this view should not be taken? It may be thought that such attachments and levies, if upheld, will expose the corporation and innocent third persons to jeopardy and fraud. We think the corporation has notice enough by the procedure prescribed for attachment or levy, to | put it on inquiry and is therefore protected if vigilant. Doubtless there is danger to innocent third persons. The fraudulent transferee having a certificate may sell the stock after attachment or levy to a bona fide purchaser, who buys trusting to the certificate. There is the same or nearly the same danger however when there has been no fraudulent transfer; for a debtor whose stock standing in his own name has been attached or levied on still retains his certificate, and may sell his stock to a bona fide purchaser, who buys in ignorance of the levy or attachment, trusting to the certificate. It seems clear therefore that these dangers afford no sufficient reason for any distinction in this respect between corporate stock and other personal property. The defendant calls our attention to the case of Van Norman v. Jackson Circuit Judge, 45 Mich. 204, in which it was decided, that under the statute of Michigan, shares of corporate stock are not liable to attachment or levy on writ or execution unless they stand in the name of the defendant in such writ or execution. The decision however seems to rest mainly on certain words or phrases and on a provision in the Michigan statute which are not in ours. The provision referred to makes it the duty of the officer selling the stock to leave a certified copy of the execution and of his return thereon with the corporation, and thereupon entitles the purchaser to a certificate of the shares bought by him upon paying the fees therefor, and for recording of the transfer. Such a provision imports that the title must pass by the sale, and therefore implies almost of necessity that the shares of stock, to be liable to the sale, must stand in the name of the debtor so that no question of fraud can remain for settlement.

Other cases hold that the statute is simply declaratory of the common law and that any transfer of property, which is liable to execution, if made by the owner with intent to hinder, delay, and defraud his creditors, is void as to such creditors at common law. Cadogan v. Kennett, 2 Cowp. 432; Sturtevant v. Ballard, 9 Johns. R. 337; Hamilton v. Russell, 1 Cranch, 309; Clements v. Moore, 6 Wall. 299, 312; Blackman v. Wheaton, 13 Minn. 326; Hudnal v. Wilder, 4 McCord, 294; Peck v. Land, 2 Ga. 1, 10; Fox v. Hills, 1 Conn. 295; Lillard v. McGee, 4 Bibb, 165; 1 Story Eq. Juris., § 352. We are inclined to think the cases first cited notwithstanding the criticism on them were rightly decided; but if not, we are entirely satisfied of the correctness of the opinion of Lord Mansfield, so often reiterated by learned jurists and judges, that "the principles and rules of the common law, as now universally known and understood, are so strong against fraud in every shape, that the common law would have attained every end proposed by the statute." Cadogan v. Kennett, 2 Cowp. 432, 434. We think moreover that these principles, however it may be with the statute, are not limited in their operation by any Procrustean formula, but that whenever any kind of property, tangible or intangible, becomes liable to be taken by attachment or execution for debt, they immediately extend to it their protection. And see Scott v. Indianapolis Wagon Works, 48 Ind. 75, 79.

We have also come to the conclusion that the shares of stock were liable to be attached and to be sold on execution notwithstanding this prior transfer, if the transfer was fraudulent and void. It is true the statute directs, that in case of attachment on original writ❘ or mesne process, the proper officer of the corporation shall render to the court an account on oath of what stock or shares the defendant had. Gen. Stat. R. I., ch. 197, § 9; Pub. Stat. R. I., ch. 208, § 9. From this it may be inferred that it was contemplated by the statute that the shares when attached should be in the name of the defendant. Doubtless this is what would ordinarily occur, but we do not think the inference that it must occur to make the attachment valid is warranted. The statute directs the affidavit but it does not provide that a neglect to make it either invalidates the attachment or subjects the corporation to any liability.

The language in Falk v. Flint, 12 R. I. 14, is too broad. It is provided in Gen. Stat. R. I., ch. 212, § 20; Pub. Stat. R. I., ch. 223, § 22, that shares of stock may be taken and sold on execution without any previous attachment, and in such a case no affidavit is required. Corporate stock has long been attachable, Digest of 1822, p. 163, but until quite recently it could not be attached on original writ unless the defendant was out of the State or concealed within it so that he could not be personally served. It is probable therefore that the primary purpose of the affidavit was to show whether there was any stock to be attached to give the court jurisdiction. The statutes, whether they relate to attachment or levy, all of them desiguate the stock simply as the stock of the defendant, not as stock standing in his name. The question is whether the stock of a debtor, which he has transferred in fraud of his creditors, is not still as to them the stock of the debtor, the same as the real estate of a debtor, which he has conveyed away in fraud of his creditors, is still as to them his real estate and may be attached or levied upon as such. The transfer being void as against

Our statute simply requires the corporation to record the sheriff's deed; it does not require the corporation to recognize the purchaser as a stockholder by issuing a certificate of stock to him. Under a statute of Indiana corporate stock may be taken on execution.

In Scott v. Indianapolis Wagon Works, 48 Ind. 75, 79, which was a suit in equity by a judgment creditor for stock fraudulently transferred by the debtor, the court while sustaining the suit remark, that "notwithstanding the transfer of the stock by the execution defendent, the sheriff may still levy upon and sell it, when it has been fraudulently assigned by the debtor." See also State, Bush v. Warren Foundry & Machine Co., 32 N. J. L. 439.

The defendants contend that the complainant, as purchaser at the execution sale, cannot maintain a suit in equity to avoid the transfers as fraudulent. They contend that if such a suit was to be brought, it should have been brought by the complainant and his co-plaintiff at law, as judgment creditors in aid of their execution, after levy and before sale, so that a fair sale could have been had. There is some plausibility in this argument, for doubtless the stock would have sold better if the transfers had been first avoided; but if the transfers are fraudulent the defendants are to blame for their being so, and therefore if they suffer in consequence of it, they have no right to complain. Hildreth v. Sands, 2 Johns. Ch. 35, 50. The cases are

in conflict upon the question whether equity will aid a purchaser of real estate at an execution sale by avoiding conveyances previously made by the judgment debtor in fraud of his creditors. There are cases which hold that the purchaser is as much entitled after sale, as the creditor before sale, to maintain the suit. Hildreth v. Sands, 2 Johns. Ch. 35; Sands v. Hildreth, 14 Johns. R. 493; Gallman v. Perrie, 47 Miss. 131; Pulliam v. Taylor, 50 id. 551; Frakes v. Brown, 2 Blackf. 295; Harrison v. Kramer, 3 Iowa, 543; Gerrish v. Mace, 9 Gray, 235; Murphy v. Orr, 32 Ill. 489; Tappan v. Evans. 11 N. H. 311. On the other hand there are cases which hold that equity will not interpose, or at least not until the purchaser has first obtained possession at law. Cranson v. Smith, 47 Mich. 189; Thigpen v. Pitt, 1 Jones Eq. 49; Smith's Executor v. Cockrell, 66 Ala. 64.

The ground on which courts that refuse aid do so, is that the action of trespass and ejectment for possession affords an adequate remedy at law. In the case at bar the complainant cannot maintain any action at law against the fraudulent transferee for possession, and if he has any remedy at all at law, he has no adequate remedy. We think therefore that whatever the true rule may be in regard to purchasers of real estate, the suit here should be maintained.

Demurrer overruled.

UNITED STATES SUPREME COURT ABSTRACT.

TRIAL CHARGE OF

COURT-ERROR.-During the trial of a case whose cause of action, as set out in the declaration, is in effect that the defendant had fraudulently imposed on the plaintiff, and by false representations extracted money from him, the court in instructing the jury should confine itself to the point really in issue, which is the defendant's actual representation as to the material facts, and not his silence, whereby the plaintiff had been influenced to pay the money. Thorwegan V. King. Opinion by Matthews, J.

[Decided May 5, 1884.]

66

ESTOPPEL-WHEN JUDGMENT NOT-INTEREST -COUPONS- TWO-THIRDS - CONSTITUTION OF MISSISSIPPI (1) The record of a judgment in a former suit has not the effect of an estoppel upon a person who was not a party in that suit. In this case the bonds were negotiable, and there was therefore no constructive notice of any fraud or illegality by virtue of the doctrine of lis pendens. County of Warren v. Marcy, 97 U. S. 96. It is not alleged in the plea that the defendant in error had actual notice of the litigation, or of the grounds on which it proceeded, or that any injunction was served upon the board of supervisors; and if he had, that notice would have been merely of the question of law, of which, as we have seen, he is bound to take notice, at all events, and which is now for adjudication in this case. There is nothing in the case of Williams v. Cammack, 27 Miss. 209, 224, to which we are referred by counsel on this point, inconsistent with these views. The decision in Hawkins v. Carroll County, 50 Miss. 735, is not a judgment of the Supreme Court of Mississippi, construing the Constitution and laws of the State, which, without regard to our own opinion upon the question involved, we feel bound to adopt and apply in the present case. It is a decision upon the very bonds here in suit, pronounced after the controversy arose, and between other parties; it was not a rule previously established, so as to have become recognized as settled law, and which of course all parties to transactions afterward entered into would be pre

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sumed to know and to conform to. When therefore it is presented for application by the courts of the United States in a litigation growing out of the same facts, of which they have jurisdiction by reason of the citizenship of the parties, the plaintiff has a right, under the Constitution of the United States, to the independ ent judgment of those courts, to determine for themselves what is the law of the State by which his rights are fixed and governed. It was to that very end that the Constitution granted to citizens of one State,suing in another, the choice of resorting to a Federal tribunal. Burgess 7. Seligman, 107 U. S. 20, 33. We have however considered the reasoning of the Supreme Court of Mississippi in its opinion in the case of Hawkins v. Carroll County, with the respect which is due to the highest judicial tribunal of a State speaking upon a topic as to which it is presumed to have peculiar fitness for correct decision, and while we are bound to admit the carefulness and fullness of its examination of the question, we are not able to adopt its conclusions. On the contrary, we are constrained to follow the decision in St. Joseph Township v. Rogers, 16 Wall. 664, and adhere to the views expressed by this court in County of Cass v. Johnston, 95 U. S. 360, in deciding the same question upon the construction of a provision of the Constitution of Missouri, which is identical with that of the Constitution of Mississippi under consideration. It was there declared and decided that "all qualified voters who absent themselves from an election duly called are presumed to assent to the expressed will of the majority of those voting, unless the law providing for the election otherwise declares. Any other rule would be productive of the greatest inconvenience, and ought not to be adopted unless the legislative will to that effect is clearly expressed." In Missouri, as in Mississippi, there was a constitutional provision requiring a registration of all qualified voters. State v. Sutterfield, 54 Mo. 391. (2) The assent of two-thirds of the qualified voters of the county, at an election lawfully held for that purpose, to a proposed issue of municipal bonds, intended by that instrument, meant the consent of two-thirds of the qualified voters present and voting at such election in its favor, as determined by the official return of the result. Supervisors of Carroll Co. v. Smith. Opinion by Matthews, J. [Decided May 5, 1884.]

BANKRUPTCY-PAYMENT OF DEBTS-EQUITABLE ASSETS-TRUST FUND - LEX REI SITE.-The question of subjecting the equitable interest in the real estate of a bankrupt to the payment of his debts is one to be settled according to the local laws in the State wherein such real estate is. This was expressly decided in Nichols v. Levy, 5 Wall. 433, and was also intimated in Nichols v. Eaton, 91 U. S. 716-729. The Bankruptcy Act, section 5045 Rev. Stat., expressly adopts the local law of the State as to such exemptions. And in Illinois the subject is regulated by a special statutory provision. By section 49, chapter 22 (Hurd's Rev. Stat. Ill. 195) of the Chancery Practice Act of that State, providing for creditors' bills of discovery and to reach and apply equitable estates and interests to the satisfaction of debts, property held in trust is made subject to that proceeding, "except when such trust has in good faith been created by, or the fund so held in trust has proceeded from some person other than the defendant himself." The Tennessee statute, which was applied to the exoneration of the interests sought to be appropriated in Nichols v. Levy, 5 Wall. 433, was substantially the same as this; and both seem to be copies from that of New York (2 Rev. Stat. 173, §§ 38, 39), although in the last named State, as appears in the decision of the Court of Appeals in Williams v. Thorn, 70 N. Y. 270, and McEvoy v. Appleby, 27 Hun, 44,

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another statute (1 Rev. Stat. 729, § 57) limits the exemption in cases where income is payable under such a trust, to the principal fund itself, and the beneficial interest of the cestui que trust in the income only to the extent of a fair support of the beneficiary out of the trust estate. The statute of Illinois does not apply merely, as is argued, to cases where a technical discovery is sought, but to all cases where the creditor, or his representative, is obliged, by the nature of the interest sought to be applied, to resort to a court of equity for relief, as he must do, in all cases, where the legal title is in trustees, for the purpose of serving the requirements of an active trust, and where, consequently, the creditor has no lien, and can acquire none, at law, but obtains one only by filing a bill in equity for that purpose. If the trust was merely passive, and therefore executed by the law of its locality, in the cestui que trust, so as to be subject to the levy of executions at law, and the present was such a case, then the bill would fail, because the remedy at law would be adequate and complete. Spindle v. Shreve. Opinion by Matthews, J. [See 24 Eng. R. 544; 60 How. Pr. 161. -ED.] [Decided May 5, 1884.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

CONSTITUTIONAL LAW-TAXATION IN AID OF PRI VATE ENTERPRISES.-State legislatures have no authority to authorize taxation in aid of private enterprises or objects, even where there is no express constitutional prohibition. It is not necessary to review the many cases cited. A court cannot ignore that the Federal and State Constitutions-nay, that all State Constitutions-prohibit the taking of private property even for public uses without just compensation. Is it to be argued therefore that private property can be taken for private uses, either with or without just compensation? The Supreme Court of the United States stated the elemental thought underlying American constitutional law when it declared that an attempt, through the guise of the taxing power, to take one man's property for the private benefit of another is void, an act of spoliation, and not a lawful use of legislative or municipal functions. There have been so many well-considered cases in the United States courts and in the State courts on this subject that it would be a work of supererogation to repeat their arguments. It must suffice that the weight of author ty and sound reason concur in holding bonds and coupons like those in question void ab initio. Loan Ass'n v. Topeka, 20 Wall. 665; Com. Bank v. City of Iola, 2 Dill. 353; Parkersburg v. Brown, 106 U. S. 487; S. C., 1 Sup. Ct. Rep. 442; Allen v. Jay, 12 (N. S.) Am. Law Reg. 481, with notes; State v. Curators State Univ., 57 Mo. 178; St. Louis Co. Ct. v. Griswold, 58 Mo. 175; Livingston Co. v. Darlington, 101 U. S. 407. In Cooley Const. Lim. the subject is fully discussed, cases reviewed, and conclusions stated. Page 264 et seq. Cir. Ct., E. D. Mo., March 22, 1884. Cole v. City of Lagrange. Opinion by Treat, J.

REMOVAL OF CAUSE--WHEN JURISDICTION ATTACHES. -It has been decided by the Supreme Court of the United States that the jurisdiction of the United States Circuit Court attaches in a case removable, under the statute, at the time when the petition and bond is filed in the State Court. The transfer of jurlsdiction is then complete in advance of the entry of a transcript of the record in the clerk's office of the Circuit Court. Duncan v. Gegan, 101 U. S. 812; Railroad Co. v. Koontz, 104 id. 15; Steamship Co. v. Tug

*Appearing in 19 Federal Reporter.

man, 106 id. 122; S. C., 1 Sup. Ct. Rep. 58; St. Paul & C. R. Co. v. McLean, 2 id. 499. The Circuit Court does not take the suit unless its jurisdiction appears of record; and if before the statutory time, when the removing party is required to enter a copy of the record and his appearance in the United States Circuit Court, either party procures a transcript and files it in the clerk's office, the jurisdiction then appears of record, and all proceedings necessary to prepare the cause for trial at the next session of the court can be taken by either party. The court then has jurisdiction of the cause as if it had been commenced there by original process. In the case of Kern v. Huidekoper, 103 U. S. 487, the plaintiff applied for removal July 6th, and filed the transcript in the clerk's office of the United States Circuit Court on July 27th The term of that court prescribed by law began on July 2d, before the petition for removal was filed in the State court. On November 14th, the July term still continuing, the Circuit Court made an order approving the filing of the record. The Supreme Court held that the filing of the record July 27th gave the Circuit Court the right to proceed with the cause; that is, as I understand the decision, to go on and perfect the issues, if necessary, and grant provisional remedies, but the removing party is not required to try the issues until the term next ensuing that of the State court when the cause was removed. Cir Ct., D. Minn., April 24, 1884. Judge v. Anderson. Opinion by Nelson, J.

SHIP AND

-

SHIPPING-NEGLIGENCE PRIVITY OF CONTRACT-RFSPONSIBILITY.-A stevedore employed by another, who has contracted to unload a vessel, can recover for injuries sustained by the defective appliances furnished him by the vessel, upon the same evidence which would enable his employer to recover. Though there is no privity of contract between the ship owners and him, they were under the same obligation to him as they were to his employer. What would be negligence to one would be negligence to the other. Coughtry v. Globe Co., 56 N. Y. 124; Mulchey v. Methodist Society, 125 Mass. 487. The implied obligation on the part of one who is to provide machinery, or means by which a given service is to be performed by another, is to use proper care and diligence to see that such instrumentalities are safe and suitable for the purpose. "It is the duty of an employer inviting employees to use his structures and machinery, to use proper care and diligence to make such structures and machinery fit for use." Whart. Neg., § 211. If he knows, or by the use of due care might have known, that they were insufficient, he fails in his duty. This doctrine is cited with approval in Hough v. R. Co., 100 U. S. 220. Due care or ordinary care implies the use of such vigilance as is proportional to the danger to be avoided, judged by the standard of common prudence and experience. Applying this test here, where if the appliances to be used were defective, serious casualties were to be apprehended, it was the duty of the master of the steamer to exercise a corresponding vigilance to provide against them. Cir. Ct., S. D. New York, April 12, 1884. Coughlin v. The Rheola. Opinion by Wallace, J.

MARYLAND SUPREME COURT ABSTRACT.*

BANK-AFFIDAVIT BY CASHIER.-Where a suit is brought by a national bank under the act of 1864, ch. 6, the cashier of the bank is the proper officer to make the affidavit required by the act to be filed with the declaration, stating the true amount that the defendant is indebted to the plaintiff over and above all disHe has the means of knowing the dealings *Appearing in 61 Maryland Reports.

counts.

between the bank and its debtors, and it is his duty to superintend the collection of debts due to the bank, and to make such arrangements as may facilitate that object, and to do any thing in relation thereto that an attorney may lawfully do. If an affidavit is to be made stating the precise sum due by a debtor to the bank he is the proper officer to make it. Trenton Bauk v. Haverstick, 6 Hals. 172; Mix v. Andes Ins. Co., 74 N. Y.55; Shaft v. Phoenix Mut. Life Ins. Co., 67 id. 549; Angell & Ames 'on Corp., §§ 299, 366. Parkhurst v. Citizens' National Bank of Baltimore. Opinion by Robinson, J.

TRUST AND TRUSTEE-REMOVAL-BREACH OF TRUST -FRAUD.-A testatrix bequeathed to A. a conditional legacy of $3,000, and after sundry bequests to other persons devised the residue of her estate in trust for the benefit of P. for life, with remainder to his children. On a bill filed by A. against M., as substituted trustee under the will, to compel the payment of his legacy, a compromise was effected by which A. agreed to settle his claim for $1,100. This sum was accordingly paid to him by M., and upon its receipt he gave M. a release for $3,360. After the payment of $1,100 to A., and A.'s release of the whole legacy, further proceedings were had, upon which, and upon the admission and testimony of M. that the personal estate was found insufficient to pay the whole of said legacy, a decree was passed for the sale by M. of certain ground rents belonging to the trust estate. M. was afterward removed from the trust, and in accounting with the trustee appointed to succeed him he claimed that the difference between the $1,100 actually paid in settlement of the legacy and the sum of $3,360 for which the release was given, was in fact paid by him to P., the tenant for life of the trust estate. Held (1), that as against the incoming trustee representing the parties in remainder, M. could not rely on a breach of trust committed by himself, although committed with the assent of P., the equitable tenant for life. No principle is better settled than that a cestui que trust will not be permitted to set up a breach of trust to which he has assented, and the fruits of which were received by him. Walker v. Symonds, 3 Swanst. 64; Brice v. Stokes, 11 Ves. 326; Nail v. Punter, 5 Simons, 555; Booth v. Booth, 1 Beavan, 125; Lincoln v. Wright, 4 id. 427. (2) That it was the duty of M. as trustee to preserve and protect the trust estate for the benefit of all the parties in interest, and he had no right to permit the life tenant to receive and waste the corpus of the estate. (3) That the compromise of the legacy was a compromise which inured to the benefit of the trust estate; and the subsequent sale of the ground rents, on the pretense that the sale was necessary to pay a large balance still due on the legacy, was a fraud upon the cestuis que trust. (4) That as against the new trustee, representing the cestuis que trust under the will, it was no answer to say that the money derived from the sale of the ground rents was paid to P., the tenant for life. (5) That in accounting with the new trustee all that M. had a right to claim of the $3,360 was the $1,100 actually paid by him in the settlement of the legacy. Mitchell v. Colburn. Opinion by Robinson, J. BROKER-COMMISSIONS-WHEN ENTITLED TO.-It is well settled by the authorities generally, and in this State, that a broker is entitled to his commissions if the sale effected can be referred to his instrumentality. It is also the established law, that after negotiations begun through a broker's intervention have virtually culminated in a sale, the agent cannot be discharged so as to deprive him of his commissions. Keener v. Harrod et al., 2 Md. 63; Tinges v. Moale, 25 id. 480; Jones v. Adler, 34 id. 440; Attrill v. Patterson, 58 id. 226. The ruling in this case does no violence to these principles, and is in harmony with the authorities cited.

There were confessedly two brokers intrusted with the sale of the property by Miller. Neither had exclusive authority. Each has negotiated with the same person who ultimately buys. The terms first offered through the plaintiff were not accepted; and the offer made by Stayman was rejected; and there is evidence tending to show entire abandonment of the idea of investment in that property until negotiations were renewed by the instrumentality of McSherry and White; after which the property was sold on the same terms as originally offered, except the modification of $100 more per annum for the lease taken by Miller for five years from the purchaser. The whole question whether the sale was really effected in consequence of what plaintiff did in first bringing the parties into negotiation, or whether the negotiations through him were bona fide broken off, and abandoned by Stayman, and the sale finally effected wholly through the influ ence of others, was, we think, fairly presented to the jury. Livezy v. Miller. Opinion by Irving, J.

VENUE-CRIMINAL CASE EXPENSE OF REMOVALWhere the case of a party charged with a criminal of fense is removed to another county for trial, the sheriff of the county to which the case is removed is the proper person to take charge of the removal of the prisoner. The commissioners of the county to which the case is removed have the power, in the absence of any statute regulating it, to allow the sheriff a reasonable sum for the removal of the prisoner. If the circumstances of the case be such as to call for extra care in guarding the prisoner, and keeping him safely to answer the charge against him, and in the opinion of the sheriff the unguarded jail is not sufficient for that purpose, it is his duty to guard it; and the expense of such guard must be borne, not by the sheriff personally, but by the community, for whose protection the prisoner is confined. If any authority is required for a proposition that seems to us so plain, it can be found in the case of Hart and others v. Commissioners of Vigo County, 1 Carter (Ind.), 309, which was a case almost precisely like the one at bar, and in which the court said that the expense of guarding the jail must be considered necessary and consequent upon the change of venue, and must be paid by Vigo county (from which the case was removed), and that the fact that Vigo county had a good jail was immaterial. The commissioners of the county where the case is tried have the same power to determine the proper allow ance to be made for removing the prisoner from the place where he is tried to the penitentiary, that they have to determine the allowance for his removal to the place of trial. Mayor, etc., v. Howard Co. Commrs. Opinion by Stone, J.

PARTNERSHIP-CONTRACT UNDER SEAL-POWER OF ONE PARTNER TO EXECUTE—VARIANCE-WAIVER OR ABANDONMENT-PAROL EVIDENCE.-The law is too

firmly established to admit of doubt, that one partner cannot bind his co-partner by signing an instrument under seal, in the firm name and style, simply by virtue of his authority as partner. In such case, to make the instrument binding on the partner not signing in person, it must appear that there was either a previous authority, or a subsequent ratification by such partner, either express or implied, whereby he has adopted the signature as binding upon him. This is the rule as we find it stated in the authorities upon the subject, and it has been fully recognized by this court upon more than one occasion. Smith v. Stone 4 G. & J. 310; Albers v. Wilkinson, 6 id. 358. In some of the American cases the rule has been spoken of as rigid and technical; but as said by Judge Story (Story on Part., § 121), the main struggle has been, not so much to contest the doctrine of the common law, that an authority to execute a sealed instrument does

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CALIFORNIA SUPREME COURT ABSTRACT.

not flow from the ordinary relation of partnership, as
to contest the doctrine, that it requires a prior author-
ity under seal, or a subsequent ratification under seal,
to make the execution valid. The old authorities, and
indeed the whole current of English decision, estab-
lish and maintain the rigid doctrine in its fullest ex-
tent. This strict doctrine however has been, by many
of the American decisions, relaxed to the extent of al-
lowing the previous authority or subsequent confirma-
tion to be shown by parol or by circumstances; and
this seems reasonable and proper to be allowed.
Schmertz v. Shreeve, 62 Penn. St. 457; Russell v. An-
nable, 109 Mass. 72; Gibson v. Warden, 14 Wall. 244.
But the general rule is maintained; and if it be true
that there was no assent to the signature affixed to the
articles of agreement, the covenant sued on is not the
joint covenant of the defendants, as alleged in the
declaration, but the covenant of Herzog alone; and
hence the plea of non est factum is sustained, because
of the variance. Chitty Pl. (16th ed.) 514; Pitt v.
Green, 9 East, 188; Howell v. Richards, 11 id. 633. At
seal
law, an obligation under
cannot
be discharged before breach by au agree-
ment in parol, or by any instrument not executed
with the same solemnity as the original obligation.
All authorities however agree that after breach, for
the damages occasioned thereby, any agreement or
transaction between the parties that would operate as
an accord and satisfaction in ordinary cases, may be
pleaded in discharge. Harper v. Hampton, 1 H. & J.
675; Kaye v. Waghorn, 1 Tauut. 428; 1 Chitt. Pl. (16th
ed.) 515, 516. But this distinction is extremely tech-
nical, and in many cases it has been found to operate
injustice; and consequently, in many of the courts of
this country the rule has been, to a considerable ex-
tent, modified. Of the many cases upon the subject,
those most frequently referred to are Fleming v. Gil-
bert, 3 Johns. 528; Dearborn v. Cross, 7 Cow. 48;

EVIDENCE-CLOSING SHOP-DAMAGES-VALUE EXEMPTION-TRESPASS.-In an action to recover damages for closing a barber shop, evidence as to the wages of the men employed is inadmissible to determine the profits. The wages usually remain the same whatever the profits, and the evidence is moreover incompetent as not being the best evidence available. "The value

common

of an offer' depends upon too many considerations
to allow it to be used as a test of the worth of the prop-
erty." Fowler v. Com'rs, 6 Allen, 96. The testimony
of the witness, Coleman, stands upon a different foot-
ing. In testifying to his own opinion of the value of
the property, he spoke of an offer made by himself. In
Perkins v. People, 27 Mich. 389, and Dickinson v.
Pittsburgh, 13 Gray, 554, it is intimated that evidence
of this nature tends to prove the sincerity of the opin-
ion of the witness, and is admissible. An instruction
was given to the effect that if the property was exempt
the defendant was a trespasser ab initio. There are
cases which held that way. But in California, and
many other States, the right of exemption is held to
be a personal privilege, which if not claimed, is waived
by the debtor. In this State we have been accustomed
to proceed under the latter rule, and we prefer it, cer-
tainly in cases where the property is not of a class
Langworthy v. Smith, 2 Wend. 587; and the principle wholly exempt, because it is equally beneficial to the
of the decisions in those cases was fully adopted by
this court in the case of the Franklin Fire Ins. Co. v.
Hamill, 5 Md. 170, 182. Among the authorities re-
ferred to with approval by this court in Hamill's case,
5 Md. 182, is 1 Roll. Abr. 453, pl. 5, setting out a case
where the condition of a bond was to raise a mill, and
the obligor came to the obligee and told him that
everything was ready to erect the mill, and asked him
when he would have him come and put it up; the ob-
ligee answered, that he would not have it, and dis-
charged the obligor entirely of the obligation to erect
the mill, and that was held sufficient to excuse the
obligor from the performance. In the case of Flem-
ing v. Gilbert, supra, it was held that evidence of a
parol agreement of the obligee, to waive any further
performance of the requirements of the condition of a
bond, was admissible, as an answer to the action. The
learned judge, speaking for the court, said: "The
plaintiff's conduct can be viewed in no other light
than as a waiver of a compliance with the condition of
the bond, so far as it related to a discharge of the
mortgage on record; and I see no infringement of any
rule or principle of law, in permitting parol evidence
of such waiver. It is a sound principle, that he who
prevents a thing being done, shall not avail himself of
the non-performance he has occasioned. Had not the
plaintiff dispensed with a further compliance with the
condition of the bond, it is probable that the defend-
ant would have taken measures to ascertain what
steps were requisite to get the mortgage discharged of
record, and would have literally complied with the
condition of the bond." And the learned judge then
refers to the case in 1 Roll. Abr. 453, pl. 5, to which we
have referred. The principle of the decision in Flem-
ing v. Gilbert has not only been fully approved and
followed by this court in 5 Md. 182, but it has been

debtor and at the same time affords a protection to
the officer. The reason of the rule is well expressed
in Twinam v. Swart, 4 Lans. 264. "Prima facie all
property is liable to execution, and it was the duty of
the constable, in the first instance, to make the levy.
He cannot know intuitively that property is exempt,
nor indeed, that exemptions will be claimed if it is.
* ** It would be intolerably oppressive to place
the constable in the dilemma of liability to an action
if he refuses to levy his execution, and to an action of
trespass if he does." Hammersmith v. Avery. Opin-
ion by Belknap, J.
[Decided Jan. 23, 1884.]

followed in many other cases, and has but recently been cited with approval by the Supreme Court of the United States, in the case of the Canal Co. v. Ray, 101 U. S. 522, 527 That tender of performance, or waiver of performance, of a condition or covenant under seal may be shown by parol evidence, was expressly held in the case in 5 Md. 170; and waiver or abandonment is what was sought to be shown in this case. Herzog v. Sawyer. Opinion by Alvey, C. J.

ELECTION-EVIDENCE-BALLOTS-TAMPERING-BURDEN OF PROOF.-In cases of contested elections, the ballots themselves, if rigorously preserved, are the highest and best evidence, and the burden of proof is on the contestant to prove that they have not been tampered with, and not upon the defendant to show that they have been fraudulently disturbed. It is error for the court to assume that the ballots had been undisturbed because it was not satisfied from the evidence that actual fraud had been committed. Mr. Justice Cooley says: "The returns of the canvassing boards are prima facie evidence in the courts. * ** If however the ballots have not been kept as required by law, and surrounded by such securities as the law has prescribed, with a view to their safe preservation, as the best evidence of the election it would seem that they should not be received as evidence at all, or if received, it should be left for the jury to determine, upon all the circumstances of the case, whether they constitute more reliable evidence than the inspector's certificate, which is usually prepared immediately on the close of the

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