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of goods sold more than six years before, and the Statute of Limitations was pleaded; evidence of the practice and custom of the trade to sell goods upon a system of credits, was held inadmissible for the purpose of proving that the price was not to be paid when the goods were sold, but on a certain date thereafter, so as to avoid the bar of the statute by showing that the bill was not due until within the six years; and it was error in the Court below to receive the evidence and refer it to the jury as testimony from which they might infer a contract different in terms from that exhibited in the account: Hursh vs. North, Chase & North.
But if any such general custom had been proved, or a special custom affecting the peculiar locality or trade, it would have been the law of the contract, and both parties would have been bound by it: Id.
The usage and practice of the firm, though not good as a custom, would have been binding, if expressly made part of the contract, or shown to have been known and assented to by the defendant at the time: and evidence of such a contract, either direct, or by proving a course of dealing between the parties on such terms, and of such frequency, as to justify the inference that the transaction was on the accustomed terms, is admissible: Id.
Lien of prior Execution, when postponed to subsequent one by conduct of Plaintiff.-If an execution be issued, not for the enforcement of the judgment by levy and sale, but for the purpose of a lien, and to acquire security for the debt, it will be postponed to a subsequent execution issued in good faith: Freeburger's Appeal.
Where the plaintiffs in the prior execution alleged that they had given orders to the sheriff to proceed and sell before the second execution came into his hands, they must prove the fact affirmatively, or their execution will lose its priority: Id.
Where one of the plaintiffs and his attorney instructed the sheriff, when the execution was placed in his hands, "not to proceed until further orders;" afterwards, that he "should make a levy, but not sell;" and subsequently, by arrangement, permitted the debtor to have access to the property levied, giving him the keys of the shop, it is sufficient evidence that their execution was not issued to collect the judgment-debt, but for another purpose, which was not legitimate nor protected by the law: Id.
COURT OF CHANCERY OF THE STATE OF NEW JERSEY.1
Dower-Right to a Sum in gross in lieu of-In proceedings for parti tion, where after a sale of the premises the widow, who was entitled to dower therein, had agreed in writing under her hand and seal, according to the statutes of this State, to accept in lieu of her said dower such sum in gross as the Chancellor should deem reasonable, and then having died before distribution, it was held, that the right vested in the widow to receive a sum in gross, interest could not be divested by her death, but should go to her children. Held further, that the value of the widow's interest should be ascertained on the principles of life annuities: Mulford vs. Hiers.
Where the estate is ordered to be sold, and the widow agrees to accept a gross sum in lieu of dower, and she dies before a sale of the premises, her estate is determined by her death, and her children can have no claim to any portion of the proceeds of the sale: Id.
Railroad Construction of Charter-Terminus.—The charter of the defendants contained the following clause: "the president and directors of said company be and they are hereby authorized and invested with all the rights and powers necessary and expedient to survey, lay out, and construct a railroad from some suitable point in the township of Orange, in the county of Essex, to some suitable point in Orange street, or some street north of the said street, or south of Market street, in the city of Newark."
Held, that this enactment relates not to the route, but to the termination of the road, and that thereby the road of the company was not excluded from being located in or through Market street: McFarland vs. The Orange, &c., Horse Car Railroad Company.
Corporation-Transfer of Stock in Blank-Collateral Security.Shares in a corporation, whose charter provides that the capital stock of the company shall be deemed personal estate, and "be transferable upon the books of the said corporation," can be effectually transferred as collateral security for a debt, as against a creditor of the bailor, who attaches them without notice of any transfer, by a delivery of the certificates thereof, together with a blank irrevocable power of attorney for the transfer thereof from the bailor to the bailee: The Broadway Bank vs Thomas McElrath.
1 From Mercer Beasley, Esq., Reporter of the Court, to be reported in the 24 volume of his Reports
M. delivered to the complainants the certificates of certain stock of a corporation, accompanied by a power of attorney irrevocable for the transfer thereof, as collateral security for certain of his notes, and the renewals thereof. The charter of said corporation provided that its capital stock should be deemed personal estate, and "be transferable upon the books of said corporation: and further, "that books of transfer of stock should be kept, and should be evidence of the ownership of said stock in all elections and other matters submitted to the decision of the stockholders of said corporation." A creditor of M. then levied an attachment upon this stock. Held, that the transfer to the complainants was effectual as against such attaching creditor: Id.
Divorce-Desertion.-To establish a case of desertion sufficient to authorize a divorce, it should appear that the wife left her husband of her own accord, without his consent and against his will, or that she obstinately refused to return without just cause on the request of her husband: Jennings vs. Jennings.
Desertion cannot be inferred from the mere unaided fact that the parties do not live together: Id.
Bridge between two States-Compact between Pennsylvania and New Jersey-Exclusive Franchise-Constitutional Law.-Upon principles of public law, it is clear that the power of erecting a bridge, and taking tolls thereon, over a navigable river which forms the coterminous boundary between two States, can only be conferred by the concurrent legislation of both States: The President, Managers, &c., vs. The Trenton City Bridge Company and Others.
When the power to make and maintain such bridge, and take tolls thereon, has been given by the joint legislature of both States, the principle could hardly be admitted, that either State, by its separate legisla tion, could declare that no other bridge should be built across such river within certain limits, and thus render the franchise exclusive: Id.
By the agreement entered into between the States of New Jersey and Pennsylvania, the river Delaware, in its whole length and breadth, is to be and remain a common highway equally free and open for the use of both States, and each State is to enjoy and exercise concurrent jurisdiction within and upon the water between the shores of said river. Both States concurred in granting to complainants the right to erect and maintain their bridge, and take tolls thereon. The legislature of New Jersey after.
wards passed an act declaring "that it should not be lawful for any person or persons whatsoever to erect, or cause to be erected, any other bridge or bridges across the said river Delaware at any place or places within three miles of the bridge to be erected."
Held, that even if it was the intention that this act should take effect without the assent of the State of Pennsylvania, that it is void on the ground that it is in contravention of the agreement above mentioned between the two States. As neither State, by the exercise of her sole jurisdiction, has the right, by the terms of the agreement, to grant the franchise, so neither can lawfully contract to refuse to grant it: Id.
Under the circumstances, as exhibited in the case, it was further held, that the Act of 1801, which conferred the exclusive privilege on the complainants, was not designed by the legislature of New Jersey to go into effect until the same had received the assent of the legislature of Pennsylvania: Id.
Whether a corporation has violated its charter, or forfeited its franchise, is a question solely for the determination of a court of law: Id.
But when a bridge company, setting up an exclusive right within certain limits, asks an injunction to prohibit the building a bridge within such limits, a court of equity will not lend its assistance when it appears from the answer that the bridge of the complainants has been so far appropriated to the uses of a railroad as to render it inconvenient and dangerous for ordinary travel: Id.
Vendor and Vendee-Assumption of Mortgage-Debt.-Where one purchases land, and assumes in his deed to pay off a bond and mortgage of his grantor, to which such land is subject, he thereby becomes a surety in respect to the mortgage-debt: Klapworth vs. Dressler & Ise.
This obligation of the purchaser to pay the debt enures in equity to the benefit of the mortgagee, and he may enforce it against the purchaser to the extent of the deficiency in a bill to foreclose: Id.
Trust-Fraudulent Conveyance-Religious Corporation-Restriction on Alienation. The trustees of a religious, literary, or other benevolent association, irrespective of any special power conferred by their charters, cannot purchase and hold real estate under trusts of their own creation which shall protect their property from the reach of their creditors: Magie vs. The German Evangelical Dutch Church of Newark.
Where property is given to a corporation in trust for a charitable use
the trust is the creature of the donor, and he may impose upon it such character, conditions, and qualifications as he may see fit: Id.
But the case is widely different where a corporation attempts, by means of its own devising, however honest and well intentioned, to place its own property beyond the reach of its creditors: Id.
The premises in question, and upon which the defendants had erected a house of worship, were conveyed to them for the consideration of one thousand dollars. The deed was an absolute conveyance in fee upon certain trusts that the property should be held as a Lutheran Church for ever, &c., and contained a clause that the grantee should not by deed alienate, dispose of, or otherwise charge or encumber said property, &c. The corporation executed a mortgage to secure a legitimate debt:
Held, that the corporation had the legal title to the land, and the power at law of executing the mortgage, and that there was no equity in refusing to enforce the mortgage for the payment of an honest debt of the corporation under color of protecting a charitable use: Id.
SUPREME COURT OF NEW YORK.1
Writ of Prohibition.-The writ of prohibition does not issue to correct errors or irregularities in administering justice by inferior courts, but to prevent courts from going beyond their jurisdiction in the exercise of judicial power in matters over which they have no cognisance: The People, ex rel. Brownson, vs. Marine Court of New York.
It ought not to issue where the party has a complete remedy in some other and more ordinary form: Id.
The writ will not be issued upon the ground that the affidavits on which proceedings by attachment were founded did not show certain matters which were necessary to justify the issuing of the attachment: Id.
Nor will it be issued on the ground that the debt for which the plaintiff was entitled to sue in the court below, was larger than the jurisdiction of that court permitted to be recovered there; provided the plaintiff, to obviate that difficulty, remits all beyond the amount of which the court has jurisdiction: Id.
Principal and Agent.-An agent cannot act for his own benefit in relation to the subject-matter of the agency, to the injury of his principal: Bruce et al. vs Davenport.
1 From the Hon. O. L. Barbour. Reporter of the Court.