صور الصفحة
النشر الإلكتروني

law will not permit its principles to be frittered
away by mere form.
Vide 2 Cruise Dig., ch. 1, § 30
et seq. Adjudications on this point, therefore, under
one apply equally well to the other.

In accordance with generally expressed notions upon the question, covenants against alienation are classified as follows; although the propriety of such classification rests mainly upon dicta and not upon legal decisions, as will be shown hereafter.

bility for debt is likewise void though the esta given be for life only; at least, this is so, if there no clause by which it is to cease and no provisio over in favor of another. Brandon v. Robinson, Vesey, 429; Blackstone Bank v. Davis, 21 Pick. 4 And in England it would seem that this result ca not be avoided through the medium of a trus Piercy v. Roberts, 1 My. & K. 4. But cases in th country seem opposed to this latter proposition, an


I. Those which are in general restraint on aliena- in certain cases will allow such a restriction if th


life estate is given in trust. Rife v. Geyer, 5
Penn. St. 393; White v. White, 30 Vt. 338. And
provision directed against alienation of a life estat
with a limitation over in case of its violation, is no
unusual and is considered valid. Rockford v. Hach
man, 9 Hare, 475. While some of these cases ar
quite beside the subject itself, yet they serve well t
show that it requires something more than the mer
caprice of a grantor or donor, to sustain any suc
restriction. It will be noticed that in them thir
parties had an interest depending upon the observ
ance and validity of the restriction. Such case
are clearly analogous to the case of a reversione
withholding the right of alienation which he is al
lowed to do. Viewed in this light they are not a
variance; indeed, the arguments of Mr. Justice
Meredith in Renaud v. Tourangeau, and of Judge
Christiancy in the late and well-considered case of
Mandlebaum v. McDonell, infra, were largely based
upon and controlled by this consideration.
II. Restrictions for a limited time.

II. Those which restrict it for a limited time. III. Those which restrict it as to purchasers. I. A general restraint on alienation sought to be imposed upon an estate in fee is void everywhere. It is so laid down in all the books. Coke upon Litt. 223a; 2 Cruise Dig., tit. xiii, ch. 1, § 22; 1 Washb. R. P. 80, 4th ed. An argument founded on supposed grounds of public policy may lead to this result, but to us, the true foundation of the rule is the repugnant natures of the two attempts to give the principal and to withhold that important incident. Public policy of the State would be best satisfied by banishing restrictions altogether, and yet it is known to give way in many such cases in the law. Indeed there is a maxim modus et conventio vincunt legem. It is therefore by no means an unerring guide; when and when not infringed too much would be the puzzling question. Christiancy, J., Mandlebaum v. McDonell, 29 Mich. 107; S. C., 18 Am. Rep. 61. Such a restraint is repugnant to the ownership, and clearly one must fall. The law has wisely and consistently declared against the former. Waker v. Vincent, 19 Penn. St. 369; Gleason v. Fayerweather, 4 Gray, 348. In the language of Judge Sharswood in Doebler's Appeal, 64 Penn. St. 17, the grantor "cannot make a new estate unknown to the law."


Since the decision of Large's case (2 Leonard, 82), in the twenty-ninth year of Elizabeth's reign, dicta of judges and statements of text writers have been numerous to the effect that a restraint for a limited time, if reasonable, may be annexed to a conveyance in fee. Some of these dicta, though often cited as direct adjudications, are found in Me Williams v. Nisly, 2 S. & R. (Penn.) 507; Langdon v. Ingram's Guardian, 28 Ind. 360; Cornelius v. Ivins, 2 Dutcher, 376; and it is mentioned as allowable in 1 Washburn on R. P. 80., 4th ed. It is noticeable, however, that Coke and Littleton, while on this point, fail to recognize such a distinction or even to advert to it. Coke upon Litt., § 361.


Nor is it necessary to make the covenant or condition void that it should expressly prohibit all alienation. If the practical effect is to produce that result, it is enough. This is well illustrated in the leading case in New York of De Peyster v. Michael, 6 N. Y. 467, where in a lease in fee a fourth sales" clause was inserted, giving to the grantor onefourth of the purchase-price on all future sales of the land. The subject was exhaustively discussed and the conclusion reached that the provision prac-terly discussion and extensive review of the cases, tically operated as a general restraint, was repugnant to the grant and was consequently void.

The very question has, of late, come before the courts in Michigan and Iowa, where, after a mas

The rule however is not infringed by providing in a deed to several that the estate shall not be subject to partition, as the right of alienation still remains. Hunt v. Wright, 47 N. H. 396. And it has been held that it does not extend to grants from the United States, which, under the Constitution, may impose any restriction. Farrington v. Wilson, 29 Wis. 383. Nor to a deed of a pew in a church pursuant to a by-law of the society. French v. Old South Society in Boston, 106 Mass. 479.

Apropos to the general rule above, a restraint on alienation or a provision that there shall be no lia

the validity of any restriction, even for the shortest time, was denied, and the distinction shown to be void of reason and good authority. Mandlebaum v. McDonell, 29 Mich. 78; S. C., 18 Am. Rep. 61; McCleary v. Ellis, 54 Iowa, 311; S. C., 37 Am. Rep. 205. There are also other cases which cannot be well understood except upon the theory that they are in support of this doctrine. Hall v. Tufts, 18 Pick. 455; Renaud v. Tourangeau, L. R., 2 P. C. 4: Walker v. Vincent, 19 Penn. St. 369. We are unable to perceive a logical reason, if repugnancy is the test (to discriminate), between a restriction for all time and one for a period falling short of that; there is at most only a difference in degree. How


ever, the question is quite unsettled, and opposing decisions in Kentucky, though not of much weight, are Stewart v. Brady, 3 Bush, 623, and Stewart v. Barrow, 7 id. 368.

III. Restrictions as to purchasers.

Lord Coke says a condition that the grantee shall not alien to a particular person is valid. Coke upon Litt., § 361. This question has not required any decision; but doubts from excellent authorities have been expressed as to the validity of even this limited restriction. 4 Kent Com. 132, 12th ed. But it is well understood that the right to purchase cannot be confined to a particular person or class. Attwater v. Attwater, 18 Beavan, 330; Schermerhorn v. Negus, 1 Denio, 448.

Second. We now come to the consideration of the more important as well as practical branch of the subject covenants respecting the use and enjoyment of real property. This includes covenants regarding other land retained by the grantor as well as that conveyed by him; adjoining land-owners also very frequently enter into covenants of this character, although there be no conveyance.

The object usually is to regulate the character and position of buildings; the uses to which they are to be put; the rights and obligations of adjoining owners as to party-walls, division fences and the like; or to provide for a general plan to be observed in the laying out of lots, opening streets and otherwise for the general improvement of land.

There can be no objection to these covenants in the way of a restraint on alienation, or as offending against the rule of perpetuities, because, subject to whatever restrictions or equities they impose upon the land, it is entirely free to alienation. Tobey v. Moore, 130 Mass. 448. The grantee need not sign the deed in which there are provisions purporting❘ to bind him as to the use of the land; his acceptance of it will be sufficient. Maine v. Cumston, 98 Mass. 317. A further question is whether such acceptance is equivalent to a strict covenant on his part as regards the restriction running with the land; and the decided weight of authority also answers this affirmatively. Atlantic Dock Co. v. Leavitt, 54 N. Y. 35; S. C., 13 Am. Rep. 556; Burbank v. Pillsbury, 48 N. H. 475; Georgia Southern Railroad v. Reeves, 64 Ga. 492. But a recent Massachusetts decision holds that unless the agreement is strictly a covenant under the grantee's hand and seal it will not authorize a suit in the name of the purchaser of the land benefited. Martin v. Drinan, 128 Mass. 515. The all-important doctrine technically known as "covenants running with the land" will now be considered.


I. From the view of a court of equity.

A distinction is generally drawn between the burden and the benefit. When will the burden or obligation of a covenant in a conveyance run with the land? The resolutions so long ago laid down in Spencer's case cannot materially aid us in solving this question. That case was founded upon a covenant in a case where there was tenure; this is in a

conveyance and no tenure. Mr. Smith, and his American editors, in their note to that case, have zealously maintained that in order that the burden may run with the land and bind purchasers, there must be, in all cases, a privity of estate founded upon tenure between the covenantor and covenantee. 1 Smith's Lead. Cas. 160, 178, et passim. To this we cannot assent. If it were true, there could be no such thing evidently as the burden of covenants in a conveyance of a fee running with the land; except in a State, as Pennsylvania, where the statute of Quia Emptores has never been adopted. Ingersoll v. Sergeant, 1 Whart. 336. Where that statute is in force, tenure between the grantor and grantee is unknown; such a proposition is in the very face of the decisions, and must fall to the ground. Bronson v. Coffin, 108 Mass. 180; S. C., 11 Am. Rep. 335; Van Rensselaer v. Hayes, 19 N. Y. 72; Georgia Southern Railroad v. Reeves, 64 Ga. 492.

But while we deny tenure or the relation of landlord and tenant as a requisite, it is nevertheless true, that there must be that which the courts, for want of a better name, have styled a "privity of estate." 2 Wash. on R. P. 284, 4th ed. This is but the ordinary relation of parties, resulting from the interest which one land-owner, as such, has in the land of another. In other words to formulate from the cases a comprehensive rule-a covenant on the part of one land-owner, as such, in favor of another, directly relating to an easement or servitude subsisting between them, or if in a conveyance, directly affecting land itself, will have the capacity of running with the land thus burdened and of binding its subsequent purchasers; without the elements above stated or implied, the covenant is collateral. This is the true principle and one which lies at the bottom of all the cases. In the former category may be ranked such cases as Bronson v. Coffin, 108 Mass. 175; S. C., 11 Am. Rep. 335; where the subject was handled with marked ability; Dorsey v. St. Louis, etc., Railroad Co., 58 Ill. 65; Morse v. Aldrich, 19 Pick. 449; Savage v. Mason, 3 Cush. 500; and Burbank v. Pillsbury, 48 N. H. 475. In such cases the covenant is annexed to the easement, which serves as the medium for the requisite privity. Norfleet v. Cromwell, 64 N. C. 1; 70 id. 634; S. C., 16 Am. Rep. 787; Bron80n V. Coffin, 118 Mass. 163; S. C., 11 Am. Rep. 335. On the other hand, cases the covenant affected the land only in indirect manner, or was not annexed to any easement and hence collateral, are: Brewer v. Marshall, 18 N. J. Eq. 337; S. C., 19 id. 537; Horsha v. Reid, 45 N. Y. 415; Lyon v. Parker, 45 Me. 474; Hurd v. Curtis, 19 Pick. 459.



The question here might arise, how, if in any case there be nothing but covenants and no granting words, such an easement may be created. Doubtless, words of covenant are not the most proper to create an easement, yet they may well have that effect where that is the plain intention. Rowbotham v. Wilson, 8 H. L. Cas. 348.

The much questioned case of Cole v. Hughes, 54 N. Y. 444; S. C., 13 Am. Rep. 611, lately followed in Scott v. McMillan, 76 N. Y. 141, impliedly recognizes the doctrine of the cases cited above, but departs from them, as it is believed with deference, in its application. This case is of too much importance to be passed over without notice. Dean, about to erect a house upon his land, agrees with Voorhees, adjoining owner, that the wall to be erected, onehalf on each, shall be a party-wall, and the latter covenanted that whenever he, his heirs or assigns, should use it, he or they would pay the value of the part so used. Both parties sell; defendant purchases Voorhees' lot and uses the wall. Action for the value of the use. Earl, J., "I do not think it did" (i. e., the covenant run with the land). "At the time Voorhees made the covenant he received no interest in land and granted none. * * He did not convey to Dean any land upon which the wall was built."

True, he did not convey or receive any land, but this does not meet the case. Did not the agreement create a party-wall, and is it not familiar law that each is entitled to the support of the other's half as an easement? But the court say, that except for the agreement Voorhees would have had a right to use the party-wall without making compensation, it being in part upon his premises. True again, but except for the agreement, the party-wall in all probability would never have existed. The conclusion reached was in direct opposition to the above cited cases of Savage v. Mason and Maine v. Cumston, from Massachusetts, and implies that an easement cannot serve as a medium for the required privity of estate, against the almost unbroken line of decisions.

As regards the benefit of a covenant running with the land, this privity of estate, shadowy at best as it may sometimes seem, appears to have been generally ignored from the first. Here the requirement is that the covenant relate to and concern the land of the covenantee, and that it will benefit the owner by reason of his ownership. National Union Bank v. Segur, 39 N. J. Law, 173; Packenham's case, 42 Edw. III, 3; 1 Smith's Lead. Cas. 150, 169, 7th Am. ed.

land at law and so bind purchasers, there would be no occasion for this head. But courts of equity are not bound down so much in the exercise of their powers, and hence resort to them is more frequent, as is indicated by the reported cases. From a theoretical standpoint this has its drawback in that the legal question is invariably waived and passed by without solution. Vide Western v. Mac Dermott, 2 Chan. App. 72.

The equity doctrine was first put upon a firm foundation by the leading English case of Tulk v. Moxhay, 11 Beav. 571; S. C., 2 Phillips, 774, and it is now a settled principle that where the purchaser takes with notice of the restricted agreement, whether oral or written, though it create no privity of estate, or strict easement at law, its vio lation by him will be restrained by a court of equity. Kirkpatrick v. Peshine, 24 N. J. Eq. 206; Tallmadge v. East River Bank, 26 N. Y. 105. The underlying idea here is that of a trust between the parties to be benefited and the covenantor, the latter in equitable contemplation agreeing to hold the land to the use of the restriction. Then a purchaser taking with notice is burdened with the trust. This notice may be actual or constructive. Actual notice explains itself. The record of the conveyance will be constructive notice, provided, of course, the purchaser claims under the covenantor, and it matters not how far back in a series of conveyances the covenant is found. Burbank v. Pillsbury, 48 N. H. 475; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35; S. C., 13 Am. Rep. 556. Any circumstances which would put a reasonable man on inquiry will suffice, as e. g., a regular uniformity in a row of houses. Vide Sutherland, J., Tallmadge v. East River Bank, 26 N. Y. 111.

The burden or the benefit of a covenant, it is observed, will have capacity to run with the land where, in the one case, there is privity of estate and in the other, where the benefit directly concerns the land; but granting these elements, it is conceived the real and ultimate inquiry then is as to the intention of the parties manifested by their language or by circumstances. Vide Dwight, C., Brown v. McKee, 57 N. Y. 684; and Phelps, J., Kellogg v. Robinson, 6 Vt. 280.

But there are limits, though perhaps not well defined, beyond which even a court of equity will refuse to go. Its interference being a matter of sound discretion, it will be governed largely by the dictates of public policy. Keppell v. Bailey, 2 My. & K. 517; Brewer v. Marshall, 19 N. J. Eq. 537. And by a just consideration as to whether, in view of a material change in surroundings, it will be effectual to attain the ends sought or to carry out the original design of the parties. Trustees of Columbia College v. Thacher, 87 N. Y. 311; S. C., 41 Am. Rep. 365. Acquiescing in a breach of the covenant sued upon will be a good defense to a suit therefor (Gaskin v. Balls, L. R., 13 Chan. Div. 324); but not if the acquiescence be in the breach of another and distinct covenant (Lattimer v. Livermore, 72 N. Y. 174); nor will the fact that the real damages are merely nominal be any defense. Kirkpatrick v. Peshine, 24 N. J. Eq. 206. The foregoing observations are also to be applied in favor of purchasers of the premises or of separate parcels intended to be benefited by these equitable restrictions. Barrow v. Richard, 8 Paige, 351. But it must appear that the benefit was intended to pass as a part of the subject-matter of the purchase. Did all covenants in conveyances run with the Renals v. Cowleshaw, 38 Law Times, 503; 41 id. 116.

The foregoing remarks on covenants running with the land are equally applicable to incorporeal hereditaments, as e. g. easements and perpetual rents, Sterling Hydraulic Co. v. Williams, 66 Ill. 393; Van Rensselaer v. Read, 26 N. Y. 558.

II. Restrictive covenants from the view of a court of equity.

by which the said corporation of Dartmouth College
was enlarged and improved and the said charter

The Superior Court of New Hampshire decided that
this could be done, whereupon a writ of error was
sued out and carried to the Supreme Court of the
United States, which reversed the decision of the
State court on the ground of its unconstitutionality.
private, yet public in their use, receive for their stock-
Why should railroad and other corporations which are
holders more compensation or percentage on their cost
than a fair percentage on money loans? And why should
not the Legislature enact that the net earnings of such
corporations in excess of a fixed return upon the actual
capital invested, shall be paid into the treasury of the
State, for the use of the people, and that the rate of
charges shall be such as to produce this return of
profit as nearly as can be estimated? Among other
beneficial results which would arise from such a plan
would be a tendency to prevent "strikes" in corpora-

LEGISLATIVE REGULATIONS OF CORPORATE tions, as there would be no extraordinary profits left
in the possession of the corporation, which might sug-
gest to the laborer in the company that he ought of

A JUST compensation for the fruits of labor done by right to participate in the profits which his own hands

have assisted in accumulating.

individuals or corporations, is the only basis on which such labor can be successfully done; hence a competition in such labor, which renders it more expensive cannot be continued without a loss to the party supplying the faults of such labor.

This is a law of business which neither the Legislature nor the individual is able to overcome. The question occurs: How can the State so regulate it to produce the best beneficial results and least cost to the consumers?


If the restriction be by way of covenant, the remedy, at law, for a violation is damages, or in equity, an injunction. A clause liquidating the damages in case of breach does not necessarily supersede the equitable remedy by injunction. Phoenix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400. Let the restriction take the form of a condition, and the proper remedy is the legal action of ejectment to forfeit the land. Cowell v. Springs Company, 100 U. S. 55. Sometimes the deed is so drawn as to embody both a condition and a covenant, and in this case the grantor has his election of remedies. Stuyvesant v. Mayor, etc., 11 Paige, 414.


Competition can never be made profitable to those creating it or to those using the fruits of such competition, until it can be demonstrated by actual experience that competition is in the line of economy.

It was said wisely by the great George Stephenson that "when combination is possible, competition is impossible." If the Legislature will refuse charters to competing corporations as far as it is practicable, and at the same time meet the public exigency, and regulate the profits of existing corporations, it will greatly subserve the public.

In 1874, by chapter 372, the Legislature of Massachusetts consolidated the railroad law, which is substantially incorporated into its recently enacted PublicStatutes, and among other provisions is this: "That such rates of fares, tolls and charges and regulations shall at all times be subject to revision and alteration by the Legislature, or such officers or persons as the Legislature may appoint for the purpose, any thing in the charter of any such railroad corporation to the contrary notwithstanding."

Previous to this enactment the Supreme Court of Massachusetts, in the case of the Commonwealth v. Fitchburg R. Co., 12 Gray, 188, decided that "the Legislature has in this view and to this end reserved to itself full power to amend or alter the charter of the railroad companies and regulate the exercise of powers under them." Herein we have sufficient law and statute to prevent and nullify a burdensome competition.

A railroad company is a private corporation, yet is for a public use.

In this connection the great case of Dartmouth College v. Woodward is usually referred to as an important authority, but the doctrine therein has been deviated from by legislative enactment and by subsequent decisions of courts. In this case the question was made whether those acts of the Legislature of New Hampshire were valid and binding upon the corporation without their acceptance or assent, and not repugmant to the Constitution of the United States,

As the legitimate consequence of such legislation competition would be gradually done away with, by placing all profits on an equal and equitable basis.

If any were unwilling to accept a charter with such limitations and restrictions, then to such it ought not to be granted. But with these conditions in a charter each and every shareholder would be sure of receiving a fixed and fair compensation for his money invested, if such corporation earned enough to meet it.

Competition among all kinds and classes of corporations has proved, almost without exception, a pecuniary failure. The result has usually been consolidation, an agreement not to compete, or an extermination of the competing company; and so long as competition continues these pecuniary disasters will arise, and it cannot be otherwise, since there are numerous examples in all our cities, especially the corporations furnishing water and illuminating gas. If one of these companies is only able to supply them at a fixed price, the second, third or fourth company in the same locality cannot supply them as cheaply as the one company. Here the pertinent saying of George Stephenson is applicable: "When combination is possible, competition is impossible."

When we hear the cry of monopoly by the citizens,
then springs up a competition, and when competition
exhausts its capital they look for relief in consolida-
tion, an agreement not to compete, or an extermina-
tion of one of the companies. So that the result would
be, if companies are chartered with the provision lim-
iting profits, then competition would cease to exist.

SANDWICH, Mass., 1884.


FEBRUARY 8, 1884.

An indorsement upon negotiable paper

"For collection; pay


to the order of A. B.," is notice to all purchasers that the
indorser is entitled to the proceeds.

An action for money had and received lies against any one
who has money in his hands which he is not entitled to
hold as against the plaintiff; and want of privity beteen
the parties is no obstacle to the action.
T law.

*S. C., 19 Fed. Rep. 301.

[ocr errors][ocr errors][ocr errors][merged small]

Francis Schell, for plaintiff.

Marsh, Wilson & Wallis, for defendant.

WALLACE, J. The plaintiff sues to recover the amount of certain checks of which it was the holder and owner, and which came to the defendant's hands and were collected by its sub-agent under the following circumstances:

The plaintiff sent the checks to the Mechanics' National Bank of Newark for collection, with the qualifiled indorsement, "For collection; pay to the order of O. L. Baldwin, cashier," Baldwin being the cashier of that bank. The Mechanics' National Bank of Newark sent the checks for collection to the defendant, pursuant to an existing arrangement between them by which each sent to the other commercial paper for collection, it being understood that the proceeds were not to be specifically returned, but were to be credited to the sending bank by the receiving bank, and enter into the general account between them, consisting of such collections and other items of account, and offset any indebtedness of the sending bank to the receiving bank. After the defendant received the checks in question the Mechanics' National Bank of Newark became insolvent, and suspended payment, being indebted to the defendant under the state of the accounts between them in a considerable sum.

Upon these facts it is clear that the relations between the defendant and the Newark bank in respect to paper received by the former from the latter for collection were those of debtor and creditor, and not merely of agent and principal (Morse, Banks, 52); and the defendant, having received the paper, with the right to appropriate its proceeds upon general account as a credit to offset or apply upon any indebtedness existing or to accrue from the Newark bank,growing out of the transactions between the two banks, was a holder for value. Since the decision in Swift v. Tyson, 16 Pet. 1, it has been the recognized doctrine of the federal courts that one who acquires negotiable paper in payment or as security for a pre-existing indebtedness is a holder for value (National Bank of the Republic v. Brooklyn City, etc., R. Co., 14 Blatchf. 242; affirmed, 102 U. S. 14), and if the defendant had been justified in assuming that such paper was the property of the Newark bank, it would have been entitled to a lien upon it for a balance of account, no matter who was the real owner of the paper. Bank of Metropolis v. New England Bank, 1 How. 234. But the checks bore the indorsement of the plaintiff in a restricted form, signifying that the plaintiff had never parted with its title to them. In the terse statement of Gibson, C. J., "a ne. gotiable bill or note is a courier without luggage; a memorandum to control it, though indorsed uponfit, would be incorporated with it and destroy it." Overton v. Tyler, 3 Penn. St. 348. The indorsement by plaintiff "for collection 27 was notice to all parties subsequently dealing with the checks that the plaintiff did not intend to transfer the title of the paper or the ownership of the proceeds to another. As was held in Cecil Bank v. Bank of Maryland, 22 Md. 148, the legal import and effect of such indorsement was to notify the defendant that the plaintiff was the owner of the checks, and that the Newark bank was merely its agent for collection. In First Nat. Bank v. Reno Co. Bank, 3 Fed. Rep. 257, paper was indorsed, "Pay to the order of Hetherington & Co. on account of First National Bank, Chicago," and it was held to be such a restrictive indorsemant as to charge subsequent holders with notice that the indorser had not transferred title to the paper or its proceeds. Under either form of indorsement the natural and reasonable implication to all persons dealing with the paper would seem to be that the owner has authorized the indorsee to collect it for the owner, and conferred upon him a qualified_title for this pur

pose, and for no other. Other authorities in support of this conclusion are Sweeney. v. Eastor, 1 Wall. 166; White v. Nat. Bank, 102 U. S. 658; Lee v. Chillicothe Bank, 1 Bond, 389, Blaine v. Bourne, 11 R. I. 119; Claflin v. Wilson, 51 Iowa, 15. The defendant could not acquire any better title to the checks or their proceeds than belonged to the Newark bank, except by a purchase for value, and without notice of any infirmity in the title of the latter. As the indorsement of the checks was notice of the limited title of the Newark bank, the defendant simply succeeded to the rights of that bank.

It is insisted for the defendant that there was no privity between the plaintiff and the defendant respecting the transaction, because the defendant was not employed by the plaintiff, but was the agent only of the Newark bank; and it is argued that if the defendant is answerable to the plaintiff, so would be every other party through whose hands the paper might pass in the process of being collected. In answer to this it is sufficient to say that the defendant is sued, not as an agent of plaintiff, nor upon any contract liability, but upon the promise which is implied by law whenever a defendant has in his hands money of the plaintiff which he is not entitled to retain as against the plaintiff. It has long been well settled that want of privity is no objection to the action of indebitatus assumpsit for money had and received. See note a, Appendix, 1 Cranch, 367, where the authorities are collated.

As against the plaintiff, the defendant had no right to retain the proceeds of the checks as security or pay ment for any balance due to it from the Mechanics' National Bank of Newark after a demand by the plaintiff. The plaintiff is therefore entitled to judgment.



While two horse cars attached together in charge of a driver on the front platform of the leading car, and drawn by a single horse, were driving over the tracks of the company in a public highway in the city of Providence from the stables to the repair shops, a lad six years old, to outstrip a playmate with whom he was racing, jumped on the rear platform of the leading car and soon afterward fell off or jumped off and was seriously injured. The lad's mother testified that he told her that he fell off, but in cross examination, when asked if he did not say that he was afraid the driver would see him and therefore jumped off, replied "Yes, sir; I think probably he did, but am not quite sure he told me he fell off." The driver testified that he did not see the boys and knew nothing of the accident, which occurred between 2 and 3 P. M., until the evening.

In an action against the horse car company to recover damages for the injury, held, that the company was not chargeable with negligence.

That the driver of the car was not chargeable with any neglect of duty.

Held further, that the company was not bound to employ a second man to guard the cars from intrusion during their transit, nor was it under any duty or obligation of care to the boy.

[blocks in formation]
« السابقةمتابعة »