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ejecting plaintiff from the train on its passage from 30 Hun, 399; Pease v. D. L. & W. R. Co., 16 W. Dig. Utica to Rome on the moruing of September 11, 1881.

260. At the close of the evidence defendant moved for a In Maples v. N. Y. & N. H. R. Co., 38 Conn. 558, the nonsuit which motion was granted and plaintiff ex- rule is laid down that a passenger whose ticket is mis. cepted.

laid is entitled to a reasonable time to find it. Oswald Prentiss Backus, for appellant, cited 80 N.Y.

In Railroad Co. v. Garrett, 8 Lea (Tenu.), 438, it was 230; 38 Conn. 557; Garrett v. Railroad Co., 3 R. Cases,

held that a passenger who gets upon a train in good 116; Curl v. C. R. I. & P. R. Co., 16 N. W. Rep. 69, 72, faith, in ignorance of the fact that a tax certificate 73; Stephen v. Smith, 29 Vt. 160, $ 52; 2 R. S. (Banks,

would not pay his fare, having no intention to impose 6th ed.) 540.

upon the carrier, cannot be treated as a mere trespas

ser, but ou failure or refusal to pay his fare after reD. M. K. Johnson, for respondent.

quest and after reasonable opportunity allowed to MERWIN, J. Concededly the plaintiff had a ticket comply, he may be ejected, but if before eviction from Utica to Rome, that he had purchased the after- another person offer to pay the fare the carrier is noon before. As to what occurred just prior to his bound to receive it and convey the passenger. The ejection, there is a conflict of evidence. On the part offer in that case was after the bell was rung to stop of plaintiff, there was evidence tending to show that the train. In the present case if the ticket of the as the conductor came along and asked the plaintiff plaintiff was mislaid and he in good faith was trying for his ticket he tried to find it and could'nt; told the to find it, he was entitled to a reasonable time to enconductor he had one and would find it in a minute; able him to do so, if he could, and if in case of failure felt through his pockets, said to the conductor, “you to find it after such reasonable opportunity he was go through the train and by the time you come back I willing and ready to pay his fare, the conductor had will find my ticket, if I don't, I have money to pay my no right to put him off. Whether or not the plaintiff fare;” that the conductor said, “find your ticket or was allowed such reasonable opportunity to find his get off the train;” that the plaintiff said, “maybe you ticket or pay his fare was, upon the evidence on the better put me off this train;" that then the conductor part of the plaintiff, a question of fact to be deterpulled the bell-rope to stop the train; that before it mined by the jury. If so the nonsuit was improperly fully stopped the plaintiff found his ticket and offered granted. it to the conductor who refused to take it and put the A question is made by the appellant that the replaintiff off.

moval was not at or near any dwelling house. This is On the part of the defendant the conductor testified not set up in the complaint, and no point was apparthat the plaintiff was in the next to the last car; that ently made about it at the trial. It does not seem im. as he came along he asked him for his ticket; that the portant to consider it here. plaintiff found what was apparently a ticket and the The judgment should be reversed and nousuit set occurrence then proceeded as follows: “I asked him aside and new trial granted, costs to abide the event. for his ticket; he said he would not give it to me until Hardin, P. J., aud Follett, J., concur. he got to Rome; I said if you don't give me that ticket I will have to put you off; he said I wont give it to you; I said very well, I will have to stop the train and

CHATTEL MORTGAGE RESERVING POWER TO put you off; I then rang up the train, the train stopped

SELL. at once, then I told him to get out; he got up and walked out down on the ground, then he wanted me to

SUPREME COURT OF ALABAMA, DECEMBER TERM, take the ticket and I refused; I told him I had stopped

1883. the train to put him off and I wouldn't carry him; I didu't stop that train for any purpose except to have

BENEDICT V. RENFRO.* him get off; the rules are, ring up the train and put the conveyance by an insolvent mortgagor of substantially off a man who don't show his ticket or pay his

all of his unincumbered property, consisting of an ordifare."

nary stock of merchandise, with a stipulation for retenThe popsuit was granted apparently upon the

tion of possession, and with reservation of a power theory that as according to the plaintiff's evidence,

of sale for the mortgagor's own benefit, is void on the the ticket was not produced and tendered before the

ground of its “inevitable tendency" to hinder and delay bell was actually rung therefore the conductor was the creditors of the grantor. justified in putting the plaintiff off.

Statutes providing for the recording of such instruments are The counsel for defendant claims that the omission

a substitute for possession of the mortgagee, and repel ang to produce the ticket was equivalent to a refusal, and

implication of fraud arising from the mortgagor's retenbrings the case within Hibbard v. N. Y. & E. R. Co.,

tion of possession, at least until the day of default, not 15 N. Y. 455. In that case the plaintiff had a ticket

unreasonably prolonged. from Hornellsville to Scio; had shown it to the con

HE facts are sufficiently stated in the opinion. ductor once, and then, afterward and after the train had passed another station, was asked to show it again and refused and was put off. It was held at SOMERVILLE, J. No subject has perhaps been more Circuit that he was not bound to show it again; but discussed in the courts of this country, especially the Court of Appeals held that he was, and that a rule within the past few years, thau the mortgage of stocks to that effect was reasonable, and reversed the judg- of merchandise, where the mortgagor is allowed, either ment.

expressly or by necessary implication, to retain posses: In O'Brien v. N. Y. C. & H. R. R. Co., 80 N. Y. 236, sion with a reserved power of sale over the mortgaged it is said by Rapallo, J., that if in consequence of the property. The courts of the several States are in irfractious refusal of a passenger to pay the full fare the reconcilable conflict on the question whether the resercompany has a right to demand, the train is stopped vation of such a power conclusively vitiates the instrufor the sole purpose of putting him off, he is not en- ment for fraud, as matter of law, without regard to titled to insist on continuing his trip on paying the any specific intent to defraud, or whether it is a strong fare, but may be removed from the train. If how badge of fraud, furnishing only presumptive evidence ever the stoppage is at a station a tender before re- of fraudulent intent as matter of fact for the jury, moval would answer. Guy v. N. Y., O. & W. R. Co.,

*S. C., 3 Alabama L. J. 86.

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and capable of being rebutted by proof to the contrary ship, the right to which, in all honesty and justice, by one who seeks to uphold the conveyance. The de- should be denied to any one except the absolute cisions will be found fully collected and reviewed at owner. The law therefore justly requires that all length by the various text writers who have under transfers or assignments of a debtor's property should taken to treat of this particular subject. As well ob- be made in good faith for the purpose of paying or seserved in Robinson v. Elliott, 22 Wall. 513, these cases curing his debts, and “without any intent to look up “cannot be reconciled by any process of reasoning, or the property from creditors for the use of the debtor." any principle of law.” Jones Chat. Mortg., 58 379 et Bump Fr. and Conv. (3d ed.) 399. seq.; Herman Chat.Mortg., $S 100 et seq., p. 222; Mortg. Our present statute is a strong affirmation of this of Merchandise (Pierce), 88 33 et seq. 88 et seq.

principle of law, and was designed more effectually The several decisions of this court touchiug this gen- perhaps to carry into effect the doctrine of Twyne's eral subject are cited in Commercial Bank of Selma v. case. It declares that “all deeds of gift, all convey. Brewer, 71 Ala. 574, and the rule so far established by ances, transfers and assignments, verbal or written, of them is stated to be that the conveyance by an in- goods, chattels, or things in action, made in trust for solvent mortgagor of substantially all of his unincum- the use of the person making the same, are void bered property, consisting of an ordinary stock of against creditors, existing or subsequent, of such permerchandise, with a stipulation for retention of pos- son." Code, 1876, $ 2120. session, and with reservation of a power of sale for the We proceed to apply these principles to the case in mortgagor's own benefit, would be void on the ground haud. The property here mortgaged is a stock of orof its "inevitable tendency" to hinder and delay the dinary merchandise, a portion of which is shown to be creditors of the grantor. In this case it was consid- of a perishable nature. The value of the goods is ered not to be material that the fact of the mortgagor's shown to be between four and six thousand dollars, insolvency was unknown to the mortgagee at the time and the amount of the mortgage debt the sum of three of the execution of the conveyance. It was further thousand dollars. The mortgagors were insolvent at added by the court that they might go further possi- the time of the execution and delivery of the instru. bly, aud declare the instrument void on the ground meut, although this was not probably known to the that it reserved a benefit to the grantors. Constantine mortgagees. The most that can be iuferred is that the v. Twelves, 29 Ala. 607; Price v. Mazange, 31 id. 701; financial embarrassment of mortgagors was kuown. Wiley v. Knight, 27 id. 336.

The grantors in the conveyance do not appear to have In the absence of all registry laws the manual deliv- owned any other property liable to the satisfaction of ery of mortgaged personal property would be essential their debts. No express power is conferred ou the to the validity of the transaction. But statutes pro- mortgagors to sell the goods, but they were left in posviding for the recording of such instruments are a sub- session of them, and by implication it was clearly unstitute for possession of the mortgagee, and ropel any derstood from the terms of the mortgage that they implication of fraud arising from the mortgagor's re- were to remain in possession until the day of default, tention of possession, at least until the day of default, which was ninety days from the date of its execution. not unreasonably prolonged. Herm. Chat. Mortg., $ “The implication is irresistible," as observed by By100; Jones Chat. Mortg., $ 380; Hopkins v. Scott, 20 num, J., in Cheatham v. Hawkins, 76 N. C. 335, 337, Ala. 183. This has been justly said to be a concession “from the very nature of the business that they (the to commerce made in obedience to the growing exac- mortgagors) were to continue in selling and trading as tions of trade.

before; otherwise why retain possession of goods The objection urged in the present case is not to any which would be a dead incumbrance upon their hands stipulation, express or implied, for the mortgagor's re- without the power of disposition." tention of possession merely, but to an implied reser- It would be an incredible supposition that the mortvation of a power of sale in the mortgagor for his own gagors, under the circumstances attending this case, use and benefit, and the argument is that this feature were expected to refund this borrowed money by of the case operates to stamp the transaction with closing their doors and locking up their merchandise, fraud.

thus entirely abandoning their business. Especially is The general principle is well stated by the Supreme this true in view of the fact that they did not pursue Court of the United States in the case of Robinson v. this course, but continued in possession, making sales Elliott, 22 Wall. 523, where it is said that “the cred- of the goods as if they were their own, until arrested itor must take care in making his contract that it does in this by the levies made by their various attaching not contain provisions of no advantage to him, but creditors. It is a necessary conclusion that a power of which benefit the debtor, and were designed to do so, sale was implied, and being implied, it was as much a and are injurious to other creditors. The law will not part of the contract as if expressed. Freeman v. Rarosauction a proceeding of this kind. It will not allow son, 5 Ohio St. 1; Stanley v. Bunce, 27 Mo. 269; Herthe creditor to make use of his debt for any other pur- man Chat. Mortg. 235; Gardner v. Johnston, 9 W. Va. pose than his own indemnity. If he goes beyoud this, 403. aud puts into the contract stipulations which have Such a power when vested in a mortgageo and accomthe effect to shield the property of his debtor, so that panied with possession, obviously confers on him a docreditors are delayed in the collection of their debts, a minion over the property which is utterly inconsistent court of equity will not lend its aid to enforce the con- with the continued existence of the lieu intended to tract." This principle is as ancient in our jurispru- be created by the mortgage. It is entirely repugnaut deuce as Twyne's case, decided nearly three centuries to and subversive of such lien. The instrument conago, where the doctrine was settled that the retaining tains within itself, in its very inception, the mechanof goods in possession by a vendor, with the power of ism of its own sure destruction. The mortgagor retrading with them as his own, rendered the sale fraud- mains praotically the owner of the property, with the ulent and void as against creditors. The reason as- right to sell and appropriate it at pleasure without liasigned was that "he continued in possession, and nised bility to account to the mortgagee, save at the mere them as his own; and by reason thereof he traded option of the latter, which may never be brought into and trafficked with others and defrauded and deceived exercise until some other creditor seeks to call the them." 3 Coke, 80; 8. C., Smith's Lead. Cas. (H. & W.) debtor to account by levying upon the property. Such 33. The coutrolling principle of the case is that the an instrument is therefore no valid security, but opepossession of property, with the accompanying power

rates in the most effectual manner to shield the propof dominiou and disposition, is an incident of owner. erty from the attack of other creditors for the joint benefit of the mortgagor and mortgagee, thus tending Iu Collins v. Myers, 16 Ohio, 547, the court declared inevitably to hinder and delay such creditors. Herman that “to hold that such a mortgage was valid would Chat Mortg. 227-236; Mortg. of Merchandise (Pierce), furnish a complete shelter under which a man could $ 33 et seq., $ 155: Wiley v. Knight, 27 Ala. 336; Com. carry on trade for his own benefit completely proBank Selma v. Brewer, 71 id. 574; Jones Chat. Mortg., tected against the payment of his debts, and placed $ 382 et seq.; Lund v. Fletcher, 39 Ark. 325; S. C., 43 wholly beyond the reach of creditors." The property Am. Rep. 270; Orton y Orton, 7 Or 478; 33 Am. Rep. was said not to be “held by the mortgage, but by the 717; Cheatham v. Hawkins, 80 N. C. 161; Robinson v. will of the debtor, because if the debtor sees proper to Elliott, supra; Constantine v. Twelves, 29 Ala. 607. dispose of it he has the power under the mortgage.

A mortgage with such a power of sale, by which the For these reasons such a mortgage on his stock of mer. mortgage debtor is enabled to sell at his option and chandise was decided to be "void as against the policy appropriate the proceeds of sale to his own use, is, as we of the law." have said above, virtuallyļa conveyance “made iv trust In Mississippi such conveyances have been beld void, for the use of the person making the same,” within the among other reasons, “because of their susceptibility meaning of the statute, and this feature of itself of abuse, by reason of the ease with which they may stamps the transaction with invalidity. Code, 1876, be employed for wrong purposes, to the injury of the $ 2120.

creditors.” Joseph v. Levy, 58 Miss. 843. In construing this statute this court said in Reynolds In more than one case they have been held void on v. Crook, 31 Ala. 634, that it is essential to the validity the ground that they throw open a wide door for the of every trust conveyance intended as a security that easy commission of fraud, and are therefore contracts its “whole purpose” should be the devotion of the

against public policy. Phelps v. Murray, 2 Tenn. Chproperty bona fide to the indemnification of the cred- 747; Lund v. Fletcher, 39 Ark. 325; S. C., 43 Am. Rep. itor, and that“ if a part of its purpose is that it shall 270. avail or be reserved for the case or favor of the grantor A large number of other adjudications on this subit is void as to creditors." Miller v. Stetson, 32 Ala. ject could be cited giving forcible reasons in support 161. The principle is essentially akin to that which of the doctrine that a reservation to the mortgagor of pronounces every conveyance void which reserves a

a discretionary power of sale under the mortgage, renpower of revocation in the grantor. The power to sell ders the mortgage fraudulent as against the creditors the mortgaged property and appropriate its proceeds of the mortgage debtor. When this fact is made to apdoes not differ in effect from a reserved power to re- pear, the better view seems to us to be that the convey. voke in whole or in part.

ance is void without regart to the existence of any actIn Riggs v. Murray, 2 Johns. Ch. 563, it was said by ual intent to defraud. As forcibly observed by a recent Chancellor Kent in a case of this character that the author, “With the enactment of statutes granting a grantors bad been “sporting with the property as their most liberal exemption of personal property, and the ow11," and the conveyance carried with it a necessary abolishment of laws for the arrest and imprisonment inferer:ce of a purpose to hinder, delay or defraud cred- of debtors, a creditor has buta naked claim against the itors. Such a power of revocation was said to be fatal property of his debtor, and it should receive the most to the instrument, and to “poison it throughout." It effective support, and every rule calculated to prevent was very long ago held that a reserved power to mort. a debtor from secreting or covering property should gige,or to sell as the graptor might deem fit, was tanta- be sustained with courage and energy." Herman mount to a power of revocation, and therefore vitia

Chat. Mortg. 255. ted a conveyance for fraud. Tarback v. Marbury, 2 Vt. We are not to be understood as intimating in this 510; Mortg. Mer. (Pierce), $ 154 et seq. All cases of this opinion that a mortgage of merchandise would be rengener class come within the evils intended to dered conclus ely invalid where the mortgagor is in be reached by Twyne's case, where it was said that good faith left in possession of the goods, with power * fraud is always apparelled and clad with a trust, and to sell for the exclusive use of the mortgagee, holdtrust is the cover of fraud."

ing the proceeds of sale for his benefit. In such cases The authorities are numerous in support of these he may well be deemed the mere agent of the mortgaviews. The Supreme Court of North Caroliva, in dis

gee acting for him and in his behalf. Mortg. Merch. cussing the subject in Cheatham v. Hawkins, 76 N. C.

(Pierce) $$ 46, 49, 53; Conkling v. Shelley, 28 N. Y. 360; 335, say: "The power to sell was the power to de- Fisk v. Harshaw, 45 Wis. 665; Tickner v. Wiswall

, 9 stroy, and the sale was the destruction and extinction Ala. 305. of the property. If there were other unsecured cred

Under the influence of these principles, it needs no itors at the time of this assignment and no other prop- further argument to show that the mortgage exeouted erty of the debtor than that conveyed in the mortgage by Crumbey Brothers to the Renfro Brothers

, ou the out of which the creditors could make their debts, the

25th day of December, 1878, was fraudulent and void fraudulent intent would seem to be irrebuttable. A

as against the appellants and other creditors of the clear benefit is secured to the debtor, and a clear right mortgagors; that the chancellor erred in not so hold. is withheld from the creditor beyond what the law ing. The decree dismissing the bill filed by appellants permits. An assignment caunot cover up and preserve is reversed, and the cause is hereby remanded, that the property for the debtor's use, or protect it from

further proceedings may be had in the Chancery the remedies and demands of the creditors. There Court, in accordance with the views expressed in this being no evidence to rebut the “ presumption of fraud

opinion. raised by the law," the mortgage was declared by the

[See ante p. 328; 32 Am. Rep. 621 ; 34 id, 265; 31 id. court to be void for fraud.

178, note; 43 id, 270, 596; 39 id. 160; 30 Eng. Rep. 808. In the case of Tennessee National Bank v. Ebbert, 9 -ED.) Heisk. (Tenn.) 154, a similar mortgage was decided to be void because it afforded such “facilities for fraud" as to stamp it as "wanting in legal good faith on the NEW YORK COURT OF APPEALS ABSTRACT. plain principle," as was said, " that every reasonable man is presumed to intend the probable consequences NEGOTIABLE INSTRUMENT - WHAT NOT- PAYMENT of his own acts. And besides," it was added, “there CONDITIONAL.-C. contracted with defendant to fur is clearly a benefit contracted for to the grantors on the nish and set the brown stone work for a certain house, face of the deed and a prejudice to the rights of other which was in course of erection by defendaut. For creditors.”'

the purpose of procuring a credit from plaintiff for the stoue necessary, C. drew an order on defendant re- LIBEL AND SLANDER DOCTOR AND CORONER. questing him to pay plaintiff or order $650 when the - The plaintiff, describing himself in his combrown stone work was "topped out,” $400 when the plaint as both physician and coroner, alleged that stoops of the houses were set, and $375 when the work defendant printed and published in its newspaper the was completed. This order was accepted by defend following article: "A Narrow Escape from being ant, and thereupon plaintiff furnished stone to C., Buried Alive. A well-to-do farmer found stiff and some or all of which was used in the performance of cold by the road side. He is supposed to have been the contract; he so far performed that the first install- frozen to death. A coroner takes charge of the case ment became due and was paid to plaintiff by defend- and impanels a jury. The inquest interrupted by a ant. C. failed to perform the residue of contract, and physician who declares the man to be alive. Animait was cancelled by him and defendant, the latter tion restored.” It appears from the complaint and finishing the work at his own expense. In an action evidence that the plaintiff was by profession a physito recuver the other two installments, held, that cian and by office a coroner. In the article complained plaintiff was not entitled to recover, that the order of he is referred to in the latter capacity only, and was not a bill of exchange, because it was not abso- nowhere can be found a word or suggestion from lutely payable. Cook v. Satterlee, 6 Cow. 108; Seacord which the most astute inquirer could infer that he v. Burling, 5 Denio, 444; Van Wagner v. Terrett, 27 had any other than that public occupation. As the Barb. 181; Prindle v. Caruthers, 15 N. Y. 426. It was language used did not relate to his profession in any payable only upon condition that the work should be way, so as to his office of coroner, it exhibits on his done as specified, and might never become payable. part a prompt and efficient performance of its duties, It cannot therefore have the force or effect of a bill of and it is impossible to see how any person reading it exchange. It does not purport upon its face to be could ascribe to the words used a defamatory meanfounded upon any consideration, and none can be ing, or without the innuendo, apply them to the presumed. Hence it was necessary for the plaintiff to plaintiff in his professional capacity, and there is no prove the consideration upon which it was given, and evidence that such application was intended. The that brought into the case all the circumstances under case of Sanderson v. Caldwell, 45 N. Y. 398, is cited by which it was given. It could operate only as an as- the respondent, but it is not any authority against this signment to the plaintiff of what should become due view. There the plaintiff was not only in fact a lawto C. from the defendant, or as a contract on the part yer engaged in the practice of his profession, but the of the defendant to pay the plaintiff the sums men- libel spoke of him as collecting claims of soldiers and tioned in the order upon the terms specified. As to sailors against the government-a professional actthe two sums last mentioned in the order, it never and it was thought to be a just inference that the inoperated as an assignment, because C. never earned jurious words used by the defendant related to him in them, and they never became due. As a contract it that character. Here it is quite otherwise. There is never made the defendant liable to pay the two sums, nothing to show that the words were so spoken of the because it is clear that he was not to be liable to pay plaintiff. They do not charge him with doing any act those sums until C. did the work, and then he was to whatever as a physician, nor were they spoken of him pay the two sums which would otherwise be payable in his business as such. In Oakley v. Farrington, 1 to C. to the plaintiff. The defendant limited the con

Johns. Cas. 130, the plaintiff was a justice of the peace, ditions upon which he would make payments, and and sued the defendant because the latter called him those conditious were never performed. Duffield v. "damned rogue." In Van Tassel v. Capron, 1 Den. Johnston. Opinion by Earl, J.

250, the plaintiff was a magistrate also, and sued be[Decided June 24, 1884.)

cause the defendant had charged him as one who had

combined with others to cheat strangers. In the first AGENCY-UNDISCLOSED PRINCIPAL LIMITATIONS- the plaintiff was nonsuited, and in the last a demurrer TRIAL-PARTY ENTITLED TO BENEFIT OF WHAT EVI- to the complaint was sustained for the reason that the DENCE DISCLOSES.—When a broker purchases prop- words did not touch the plaintiff in his office. So in erty without disclosing the name of the principal for the case before us. The plaintiff was not spoken of as whom he acts, he becomes liable personally for the a physician; he was not described as acting as such on purchase-price, and is entitled to collect such price the occasion in question, and if we assume with the from the principal, and the latter can relieve himself plaintiff's counsel-as I cannot in fact concede-that from such liability only by showing payment to the the language of the defendant could in any connection vendor, or a release for a good and valid consideration be deemed actionable, it is not so here. Purdy v. from the broker. Cobb y. Knapp, 71 N. Y. 348; Sey- Rochester Printing Co. Opinion by Danforth, J. mour v. Minturn, 17 Johns. 170. As affecting such [Decided June 24, 1884.] liability, it is immaterial whether the broker disclosed to the vendor the fact that he was acting as agent for some principal or made the purchase ostensibly as principal. The statute of limitations begins to run UNITED STATES CIRCUIT COURT ABagainst a claim by the broker from the time of the

STRACT.* purchase, the same as if he had himself been the vendor. Considerant v. Brisbane, 22 N. Y. 389. In the

PATENT-EARLIER PUBLICATION.—A patent is not absence of objections to the sufficiency of the com- invalidated by statements in an earlier publication, plaint it is the duty of the trial court to give the

unless those statements are full and definite enough plaintiff the benefit of any cause of action established

to inform those skilled in the art how to put in pracby the evidence, and upon appeal this court will con

tice the invention now patented. Betts v. Menzies, sider the cause of action disclosed by the evidence,

10 H. L. Cas. 117; Neilson v. Betts, L. R., 5 H. L. 1; without regard to any objections to the sufficiency of

Seymour v. Osborne, 11 Wall. 516, 555; Cawood Patthe pleadings, wbich were not made in the court be

ent, 94 U, S. 695, 703, 704; United Nickel Co. v. Anthes, low. Southwick v. First Nat. Bauk, 84 N. Y. 420;

Holmes, 155; Same v. Manhattan Brass Co., 16 Blatch. Cowing v. Altman, 79 id. 167; McGoldrick v. Willits,

68. Cir. Ct., D, Mass., July 25, 1884. Hocd v. Boston 52 N. Y. 612. Knapp v. Simon. Opinion by Ruger,

Car Spring Co. Opinion by Gray, J. C. J. [Decided June 10, 1884.]

*Appearing in 21 Federal Reporter.

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CARRIER CONNECTING-LOSS BY

States courts for this Stato in accordance with the GENCE.-(1) Several connecting carriers, having en- opinion in Martin v. Hausman, supra, and until there tered into certain contract arrangements for continu- be some authoritative construction of the statute by ous transportation on through bills of lading, at set- the Supreme Court of the United States, or of the tled rates of compensation, providing that each line State, I shall follow the rule laid down as above. (2) should be responsible alone for its acts or omissions, Federal courts have authority to take possession of do not thereby become liable as partners for the one property so assigned, and dispose of it in accordance dertakings, representations, or misconduct of the car- with the provisions of the State statute; and where a rier who receives merchandise from a shipper. It was form of procedure is prescribed by the State statute, the point directly involved and decided in Insurance which may be pursued by the State courts of general Co. v. Railroad Co., 104 U. S. 146. The defendant's jurisdiction, it may also be pursued in the correspondobligations were therefore those of an intermediate ing Federal courts. Strong v. Goldman, 8 Biss. 572; 2 carrier, arising out of the implied contract springing Story Eq. Jur., $ 1057; Lackland v. Garesche, 56 Mo. from receipt of the goods. These bound it for safe | 267. (3) It is insisted that the plaintiffs, being only carriage over its own line, and for delivery or tender general creditors, and not having as yet reduced their to the next carrier beyond, within reasonable time. claims to judgment, have no standing in a court of Insurance Co. v. Railroad Co., supra; Empire Co. v. equity to enforce such claims as against these transWallace, 18 P. F. S. 302; Myrick v. R. Co., 107 U. S. fers. The opinion in the case of Dahlman v. Jacoba, 102; S. C., 1 Sup. Ct. R. 425; Railroad Co. v. Manfg. supra, sustains this view, but the decision there was Co., 16 Wall. 318; Am. & Eng. R. Cas. 271. It must subsequently set aside in the same case. 16 Fed. Rep. not be overlooked that the question here is not (as in 614. True, in this latter opinion nothing is said as to Railroad Co. v. Manfg. Co., 16 Wall. 318) whether the the specific ground upon which the former was based, defendant remained liable under his obligations as so that opinion was not expressly overruled; but in carrier to the date of loss, but whether he was guilty view of the decision of the Supreme Court of the of willful fault, and consequently forfeited the ex- United States in Case v. Beauregard, 101 U. S. 688, I emptions in the bill of lading, and thus became re- am constrained to rule against the defendants on this sponsible for the consequences of the fire. That he proposition. In that case it was decided that “when. was not guilty of such fault seems reasonably clear. ever a creditor has a trust in his favor, or a lien upon (2) Where cotton was delivered to a carrier to be trans- property for the debt due him, he may go into equity ported from Memphis, Tennessee, to Woonsocket, without exhausting his remedy at law.” The first Rhode Island, upon through bills of lading, exempt-clause of this decision covers this case. The plaintiff's ing liability for fire, issued by the receiving carrier in seek to charge the defendants, holding certain proppursuance of such arrangement between the connect-erty as trustees for them and other creditors. The ing carriers, and the cotton was delayed at Norfolk by gravamen of the suit is the enforcement of a trust. reason of a block caused by accumulation of freight Strike that out and nothing is left. And in accordon the line intended to convey it therefrom, and was ance with that decision, it must be held that a general stored in the defendant's warehouses, where it was creditor may, without reducing his claim to judgment, burned, held, that the company so storing the cotton proceed in equity to charge one holding the property was not bound to send the cotton forward' by other of his debtor received under such an assignment or lines, and was not liable for the loss. The fact that transfer as a trustee for the benefit of creditors. Ing. the company had effected an insurance on the cotton

Co. v. Transp. Co., 10 Fed. Rep. 596; Same v. Same, is unimportant. Cir. Ct., E. D. Penn., June, 1884.

13 id. 516; Batchelder v. Altheimer, 10 Mo. App. 181; Deming v. Norfolk. Opinion by Butler, J.

Holt v. Bancroft, 30 Ala. 193 ; 1 Story Eq. Jur., $$ 546, INSOLVENCY

547. Cir. Ct., E. D. Mo., July 25, 1884. Clapp v. DittASSIGNMENT – FEDERAL

man. Opinion by Brewer, J. CLAIM TO JUDGMENT.-(1) Where a debtor who is insolvent transfers all his property to a single party, LADING--EMBEZZLEMENT BY MASTER-FRUIT CARGO and under such circumstances that it is obvious that GOLD COIN-USAGE OF TRADE.-A vessel was specially thero was no intention of merely giving security, and chartered for a lump sum to make a voyage from Balwith the idea of paying the debt and reclaiming the

timore to the Bahama islands, the charterers to furproperty, such transfer, no matter by what form of nish“ ballast out and a cargo of fruit back.” A sum instrument, whether that of a chattel mortgage or in gold coin was given by charterers to the master, otherwise, and whether made to the creditor directly for which he gave a bill of lading, "freight as per or to a trustee, must be treated as a general assign-charter-party." On the voyage out the master left ment, and for the benefit of all creditors. This ques

the ship, having embezzled the money. Held, that tion was fully considered by this court in the case of under the charter-party the owners did not contract Martin v. Hausman, 14 Fed. Rep. 160, and after a full for the safe carriage of gold coin, and that the bill of examination of the statutes of Missouri and the de- | lading was given without authority. Held further, cisions of its Supreme Court, it was answered in the that the alleged usage in the fruit trade with the affirmative. The opinion in that case was written by Bahamas to send out in the vessel gold coin with which Judge Krekel, and was concurred in by my predeces- to purchase the return cargo was not proved to be such sor, Judge McCrary. That opinion was followed in a usage as would bind a specially chartered vessel as Dahlman v. Jacobs, 15 Fed. Rep. 863, in Kellogg v. carrier of the gold, and that in this case the master Richardson, an unreported case in the Western Dis. received the gold as bailee of the charterers. Dist. Ct., trict, and also, I am informed, in other cases in this D. Maryland, July 5, 1884. Hart v. Leach. Opinion by court, as well as in some of the District Courts of the Morris, J. State. While if this was a new question, I confess my TAXATION-SHARES OF NATIONAL BANK-ACT OF own conclusions would be different, and in harmony 1883, CH. 345-VALIDATING LEGISLATION. — (1) The with the decisions of National Bank v. Sprague, 20 N. Legislature of a State caunot validate a tax which is J. Eq. 28: Farwell v. Howard, 26 Iowa, 381; Doremus prohibited by the laws of the United States ; but it is V. O'Harra, 1 Ohio St. 45; Atkinson v. Tornlinson, id.

competent for it to sanction retroactively sach pro• 241; and other casus cited by counsel for defendants: ceedings in the assessment of a tax as they could have yet'I think there has been such a course of decision in legitimately sanctioned in advance. (2) In the act of this Circuit as to establish the rule in the United 1881, ch. 271, Laws of New York, the fatal vice was the

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