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of debt collecting is doomed! County court prac- kicking out the intruder, leaving him to his legal titioners may tremble in their shoes, and gentle- remedy. men who never pay their tailors' bills may prepare to encounter a new infliction! For according to a
NOTES OF CASES. circular which it is announced has been issued to the traders of Birmingham, a system of recovering 1 134, the question was as to a trade-mark in
IN Re Duzer, Chan. Div., 54 L. T. Rep. (N. S.) debts is about to be inaugurated which threatens to put all others in the shade. The name of the new “Melrose Favorite Hair Restorer." Bacon, V. C., undertaking is ‘The Birmingham Uniformed Col- said: “The question before me is whether this lection Agency,' and its object is described as be- | manufacturer, the present applicant, who for many ing 'the recovery of bad, doubtful or troublesome years has sold his commodity under the trade name debts.' The circular, after mentioning the diffi- which he is now desirous of having registered, is culty which exists in recovering debts by ordinary prevented by thisаct from having it so registered belegal methods from people who do not wish to pay, cause one of the words which he has used as part of continues: “Why is this? Because there is no ac- the name is said to be a fancy word in common use tual publicity in county court actions which can There are innumerable instances of the sale of parshame such an individual in the eyes of his neigh-ticular commodities with all sorts of distinct appelbors, as would be the case from the repeated visits lations not necessarily geographical names. In parof the uniformed gentlemen who will act as our col- ticular in the perfumery trade, there have been for lectors. Yes, we intend to make life very pleasant centuries all sorts of purely fanciful names which for the man who owes debts around this neighbors have been given to various commodities. The arhood, and is able to pay, but wont. We are in gument here is, that inasmuch as Melrose is a wellbusiness to collect accounts from just such custo- known place, and one which has a geographical sig. mers, and if there is one who does not come down nification, it ceases, when applied to a bottle of after we have turned our batteries on him, we are pomatum, to be a fanciful expression. In my opinion afraid it will be an awkward case. The way of the it is proved to be a fanciful expression, and not one Uniformed Collection Agency (this title is copy- which is in common use in connection with the right) is this: Such persons as desire our services commodity to which it is applied. *
* That become subscribers to our plan, and pay a fee of 58. the word may have a different signification nobody per annum. When the agency receives a case, an will dispute, but I am asked whether upon this laordinary and gentlemanly collector is at once sent bel, which is now sought to be registered, the word to the debtor to solicit payment of the amount due. Melrose' is descriptive of a place. I say that it is If this is of no avail we send another collector, who not; it neither is, nor was it meant to be so. If wears a striking uniform with the word collector' therefore it is not descriptive of a certain geoin very distinct letters on the band of his hat. This graphical spot, can it be any thing but a fancy collector visits the debtor at his private residence word? What connection has this commodity with and business address three successive days (if nec- Melrose? Upon a mere fancy he puts this name essary). If the third visit does not result in ob- and mark upon the commodity which he sells, so taining the money the collector then wears a hat that all the world may know that he is the manuon the band of which are the words Collector of facturer, and nobody else. It has been sold for Doubtful Debts.' His orders are to call daily on manylyears in the public market under that name the debtor, both at his private residence and place which he has adopted, and which is the very thing of business, and demand payment as often as is which the act of Parliament says may be regisnecessary. These calls soon attract the attention tered. It is a ‘fancy word not in common use in of the neighbors, and become the talk of the neigh- the trade in the goods with respect to which the borhood - the very effect our agency aims at, and application is made.' Cases have been cited more the very shame of which produces the desired ef- or less resembling that which is now before me, but fect; for who could boldly face more than half a the case which was before Chitty, J., seems to me dozen calls from the gentleman with the suggestive to be as directly in point as any thing can be. I uniform and hatband? The consequence is that an can perceive no difference in substance between that arrangement satisfactory to the creditor is almost case and the one before me, and I do not differ in always effected.'” We shall await the working of the slightest degree from the decision of the this society with interest. It occurs to us that the learned judge in that case. He had there, as I law will hardly regard a nuisance for the collection have here, to construe the words of the act of Parof debts as legal. It was recently held libellous to liament; he had to find out, as I have to find out, advertise in a newspaper a want" for a debtor to whether a word was a fancy word or a geographipay a bill (Zier v. Hoflin, 33 Minn. 66; S. C., 53 cal word, and he came to the conclusion, in regard Am. Rep. 9), and in another case it was held libel to the word which was before him, as I do now lous to exhibit furniture as for sale to pay a “dead without hesitation with regard to the word 'Melbeat's” account. There are legal ways of collecting rose,' that it is not a geographical description, but accounts, and if they are unsuccessful the debtor is that it is a purely fanciful word; just as much a entitled to protection against such annoyances. fanciful word as 'Eureka' or "Opoponax,' or any Probably in most cases he will protect himself by other similar word, when applied to a particular
commodity, and that it is meant only to designate transmit them in cars separate from those devoted
Stoneman v. Erie R. Co., 52 N. Y. 429; Sloman v.
Co. v. Swift, 12 Wall, 262 were all cases in which
the property was delivered to the carrier, and alpreme Court, July 19, 1886, it was held that a rail though not baggage, it was held that having reroad company is not responsible for $92,000 in
ceived it with knowledge that it was not the ordigold coin in satchels of a passenger as luggage."
nary traveling baggage of the passenger, the liabilThe court said: “ The right of plaintiff as a passen- ity of a common carrier attached. We are clearly ger must be determined by the contract he made
of opinion that the defendant was under no obligawith defendant. He purchased four first-class pas- tion, by virtue of its contract of passage with senger tickets from San Jose to Sacramento, which plaintiff as an individual, to permit him to carry entitled him and his three employees to transporta- with him in its passenger car the sum of money intion in the first-class passenger coaches of defend-dicated, in the manner indicated, and weighing, as ant between the points indicated, and gave to them
it must have done, between three and four hundred a right to have their luggage, not exceeding one
pounds. See note, 34 Am. Rep. 379, hundred pounds to each person, transported at the same time free of charge. It gave to them no right to travel in a baggage, express or freight car, but In Lawrence v. Green, California Supreme Court, in the regular passenger car or cars of the defend- | August 17, 1886, it was held that where a plaintiff ant, and the contract gave to them no right to shows that he was in jured by the overturning of a transport, either in their own charge or that of the coach, caused by the breaking of one of its wheels defendant, any merchandise or property not in- while it was being driven round a curve, down cluded in the term luggage.' The law takes no grade, on a mountain road, where one side of the note of what property a passenger carries upon his track was about a foot lower than the other, he has person, but beyond this he may not, by virtue of made out a prima facie case, The court cited Chrishis contract for passage, carry, either free of charge tie v. Griggs, 2 Camp. 79; Dawson v. Manchester, etc., or by paying an extra charge, property not included R. Co., 5 L. T. Rep. (N. S.) 682; Shear. & R. Neg., within the import of the term luggage.' Were it $ 268, note, and said : " The oecurrence of an injury otherwise, it would be within the power of the pass through a defect in the vehicle is at least prima senger to convert the passenger coaches of a rail- facie evidence of negligence on the part of the carroad company into vans for the transportation of rier. Shear. & R. Neg., § 268. The carrier must merchandise, or to compel the carrier to do much have carriages adequate to the work to which they the same thing by furnishing baggage cars for the are subjected, and must see that they are kept in conduct of ordinary freight. The orderly and ex- duc repair. Whart. Neg., SS 628, 629. But the peditious transit of passengers and their baggage carrier is not liable for damages incurred through renders it necessary and proper for the carriers en- latent defects wbich could not have been discovgaged in their transportation to run separate trains ered by examination, and which are not traceable for their accommodation, or at least to furnish and to any want of good business diligence in the man.
ufacturer. Whart. Neg., § 631. The negligence surance Co., 69 N. Y. 193; Hill v. Insurarce Co., of the defendants was established prima facie by 10 Hun, 26." proof that the wheel broke, and the coach was INSOLVENCY,— In Daniels v. Palmer, Minnesota thus overturned, and there was no evidence to over- Supreme Court, July 6, 1886, the oourt said: “The come the prima facie case -no evidence that the term 'insolvency'is not always used in the same wheel was sound, or that the defect was latent. As
It is sometimes used to denote the insuffithe case was presented, was the court authorized ciency of one's entire property and assets to pay all to charge the jury upon the hypothesis that the ac- his debts. This is its popular and most general cident would have happened if there had been no meaning. Herrick v. Borst, 4 Hill, 650. But it is defect in the wheel? The fact that the road was a also used, in a more restricted sense, to express the foot lower on the inner side did not perhaps prove, inability of a person to pay his debts in the ordinor tend to prove, that the wheel was a good wheel. nary course of business. This is the sense in which It left the unsoundness of the wheel still uncon- it has been invariably held to have been used in all tested, and simply showed that the unsound wheel the various bankrupt acts of England and America. broke when subjected to the strain, or to the slide In Bayly v. Schofield, 1 Maule & S. 338, it is said: or lurch of the coach on the uneven ground. If "Insolvency,' as respects a trader, means that he the condition of the road was merely sufficient to is not in condition to pay his debts in the ordinary create a suspicion that a sound wheel might have course, as persons carry on trade usually do; and it been broken under the circumstances, the jury does not follow that he is not insolvent because he would not be justified in acting upon a mere sur- may ultimately have a surplus upon the winding up mise or conjecture of the existence of a possible of his affairs.' So, in Shone v. Lucas, 3 Dowl. & fact of which there was no real evidence. But even R. 218, it is said: "Insolvency,' within the meanif it should be conceded that evidence that one side ing of the bankrupt laws, does not mean an inabilof the road was lower than the other, and that the ity to pay twenty shillings on the pound when the coach lurched toward the lower side, tended to affairs of the bankrupt shall be ultimately wound overcome the prima facie case of the plaintiff, it up; but a trader is in insolvent circumstances when was for the defendants to overcome it. The de- he is not in condition to pay his debts in the usual fendants could not overcome the plaintiff's case, and and ordinary course of trade.' The same definition show that the accident was not the result of their has been given of the term as used in the insolvent carelessness or negligence, except by proving how law of Massachusetts, which, in respect to the matthe accident did occur, and that it did not occur ter now under consideration, is very similar to our by reason of a defect in the wheel, or that such de- In Thompson v. Thompson, 4 Cush. 127, Shaw, fect was latent.” See 47 Am. Rep. 75.
C. J., says: 'By the term 'insolvency, however, as used in these statutes, we do not understand an
absolute inability to pay one's debts at some future COMMON WORDS AND PHRASES.
time, upon a settlement and winding up of all a
trader's concerns; but a trader may be said to be in MONTIGUOUS.- In Olson v. St. Paul Fire & insolvent circumstances when he is not in a condi
Marine Ins. Co., Court, tion to pay debts July 14, 1886, it was held that a building erected sons carrying on trade usually do.' This definition at a distance of twenty-five feet is not to be con- has been repeatedly reasserted by the same court. strued as contiguous to another. The court said: Lee v. Kilburn, 3 Gray, 594; Vennard v. McConnell, ." The situation of the buildings in question was 93 Mass. 561; Barnard v. Crosby, 6 Allen, 327. The not such as to warrant the court in adjudging them same construction has been placed upon the term as to be contiguous.' The term must be given its used in the late United States bankrupt act. In proper definition and meaning, as commonly re- Toof v. Martin, 13 Wall. 40, the court, after referceived and understood, to the end that policy- ring to the more general and popular meaning of holders may not be misled or left in doubt as to the word “insolvency,' add: ‘But it is also used in their duty. See Webst. Dict., 'contiguous' and a more restricted sense to express inability of a adjacent.' Plaintiff's building was separated and party to pay his debts, as they become due, in the detached from other buildings when insured. It in ordinary course of business. It is in the latter sense fact remained so when destroyed. But the defend that the term is used when traders and merchants ant insists that the term 'contiguous,' as here used, are said to be “insolvent,' and as applied to them, does not mean merely adjoining or immediate prox- | it is in the sense intended in the act of Congress.' imity, but that it is also applicable to objects near To the same effect, see Wager v. Hall, 16 Wall. 599; hy,' and that, upon the facts of this case, it should | Buchanan v. Smith, id. 308; Dutcher v. Wright, 94 be held that the shop was sufficiently near to be U. S. 557; Merchants Bank v. Cook, 95 id. 342." within the condition. This construction is not ad- WAGON.— A hearse is a wagon. In Spikes v. missible. The matter would be left altogether too Burgess, 65 Wis. 428, the court said: “The simple doubtful and ambiguous for the protection of the question presented is whether a 'hearse'
be assured. We cannot hold that a building twenty- exempt from ‘seizure or sale on execution ' against five or any particular number of feet from a de. the owner.
The hearse is claimed to be a tached dwelling is contiguous to it. Arkell v. In-wagon' within the meaning of this statute. It is
described as a regular four-wheeled wagon - the. HIS was a bill in equity by Edward B. James, setrunning gear being the same as any other wagon ting forth that one William H. Stewart had made with a frame inclosed on the top, and with glass a contract with the defendant city to build a school
house; that Stewart entered upon said contract, and sides, front and back, and used exclusively for a
had nearly fulfilled the same, when he became finanhearse — for carrying bodies to the cemetery. 'It cially embarrassed on June 13, 1884; that a meeting of is a carriage for conveying the dead to the grave. his creditors was held, and they voted to accept the Webst. Dict. It is the superstructure which adapts offer of said Stewart, to pay the sum of twenty cents it to this particular use, and the use which gives it
on the dollar in full settlement of their respective the particular name. But the question of exemp- abling him to carry out his contract with said city,
claims; that on June 21, 1884, for the purpose of en. tion is not dependent upon any distinctive use.
and to fulfill his agreement with the several creditors, The privilege of claiming a wagon as exempt is not the said Stewart applied to said James for a loan of confined to persons engaged in agricultural pur- money, whereupon the said James, in good faith and suits, nor any particular class of business. Knapp v. for the purpose aforesaid, let him have $575, and took Bartlett, 23 Wis. 68. The learned counsel for the
an assigoment of the sum of $600, due and to become
due to said Stewart from the said city of Newton, and defendant admits that the privilege of exemption
immediately thereupon the said James notified the extends to every owner of a wagon, but insists that said city of said assignment; that on June 26, 1885, no vehicle can be a wagon, within the meaning of said Stewart, by reason of the agreement of certain the statute, unless it is adapted to farm purposes, or creditors to accept tbe offer of twenty cepts ou the the carriage of ordinary freight or commodities, or
dollar, filed a petition in insolvency in the county of
Middlesex, and on July 10th following said Gilkey • living persons. Undoubtedly such a vehicle may
was duly elected assignee of said Stewart; that before be a wagon, but the term is general, and there are
and after the filing of his said petition said Stewart a variety of wagons, differing ir. style, form and expended the greater portion of said $575 in further dimensions, depending upon the character of the completion of his contract with the city, and made a use, the nature of the business, and the pleasure or
proper and legitimate use of all of said sum; that at notions of the manufacturer or owner.
the time of filing said petition there was due said
'A carriage Stewart, under said contract, the said sum of $600 or or vehicle with four wheels' is a wagon. Worc.
more, though not then payable; that afterward the Dict. It simply means 'a wheeled carriage; a contract was completed, and a much larger sum bevehicle on four wheels, and usually drawn by oame due, the most of which sum had been paid to horses; especially one used for carring freight.' said Gilkey as assignee, the said city reserving, on acWebst. Dict. 'A vehicle moved on four wheels,
count of this assignment, a sum sufficient to pay the
same; that said city has been ready and willing to and usually drawn by horses.' Imperial Dict. The
make a severance of the sum due under said contract, running gear of the hearse has the essentials of a
to pay the said James the amount of said assignment, wagon. With an ordinary superstructure no one and the said Gilkey the balance, if it could legally do would claim it was not a wagon. The character so, but has been forbidden so to do by said Gilkey,
who as assiguee aforesaid claimed the whole amount and style of the superstructure were merely to make
due under said contract. The prayer of the bill was, it serviceable and attractive in a particular and
among other things, that the said city of Newton be very necessary line of industry. The mere fact that
enjoined from payment of the sum of $600 to the said the superstructure differed from superstructures on Gilkey until the further order of the court, and that most wagons did not prevent it from being a the sum of $600 might be decreed to be paid to the wagon. For the reasons given we hold it was a
plaintiff by the said city of Newton.
Said James and said Stewart, at the time of the exwagon.
ecution of the assignment or order, knew that said OBLOQUY. - This means censure and reproach. Stewart was aotually insolvent, and had called a meetBettner v. Holt, California Supreme Court, July, ing of creditors, and that they had voted to accept 1886.
twenty cents on the dollar of their claims. Said Stew. LUGGAGE. - In California and England this means
art represented to said James that he was obtaining
this money to assist him to complete the contract, baggage. Pfister v. Cent. Pac. R. Co., California
and to effect the composition of twenty cents on a Supreme Court, July, 1886.
dollar, and assured him that he could do so. No acMESSENGER. — A county treasurer is not a
tion or vote was ever had or taken upon said assignsenger" within a statute imposing on railroads the ment by the city of Newton, by the city council or duty of transporting “messengers
on certain oc
either branch thereof, by any committee, or by any casions. Pfister v. Čent. Pac. R. Co., California Su-Gilkey. when he was appointed, had substantially no
person authorized to bind the city. The assignee. preme Court, July, 1886.
funds of the estate of said Stewart in his possession,
and in order to complete said contract, expended ASSIGNMENT
about $1,200 of his own funds, in labor and materials, PARTIAL ENFORCEMENT IN
in finishing the building, and paid off, out of the funds EQUITY.
in the hands of the city, eventually paid him, meMASSACHUSETTS SUPREME JUDICIAL COURT,
chanics' liens thereon amounting to about $500 besides. SEPTEMBER 8, 1886.
Said James actually paid and loaned to said Stewart
the sum of $575 at the time of the execution of the JAMES V. CITY OF NEWTON.*
assignment, which was the sum agreed upon between A bill in equity may be maintained to enforce the (partial as
Hearing in the Superior Court before Knowlton, signment of a debt.
J., who reserved the case for the consideration of the *8N. E. Rep. 122.
C. C. Powers, for complainant.
their rights as between themselves, and the rule W. S. Slocum, for defendant city of Newton.
'against partial assignments, established for the benefit
of the debtor. Superintendent of Public Schools v. W. B. Durant, for defendant, Gilkey, assignee.
Heath, 15 N. J. Eq. 22; Fourth Nat. Bank v. Noonan, FIELD, J. The assignment in this case is a formal 14 Mo. App. 243. assignment, for value, of “the sum of six hundred In many jurisdictions courts of equity have gone dollars now due and to become due and payable to further, and have held that an assignment of a part of me" from the city of Newton under and by virtue of a fund or debt may be enforced in equity by a bill a contract for building a grammar-school house, and brought by the assignee against the debtor and asit is agreed that this sum “shall be paid out of the signor while the debt remains unpaid. The procedure money reserved as a guaranty by said city," and the in equity is adapted to determining and enforcing all assignee is empowered “ to collect the same." There the rights of the parties, and the debtor can pay the is no doubt that it would operate as an assignment to fund or debt into court, have his costs if he is enthe extent of $600 if there can be an assignment, with- titled to them, and thus be compensated for an exout the consent of the debtor,' of a part of a debt to peuse or trouble to which he may have been put by become due under an existing contract; and the cases the assignment. But some courts of equity have gone that bold that an order drawn on a general or a par- further, and have held that after notice of a partial ticular fund is not an assignment pro tanto unless it is assignment of a debt, the debtor cannot rightfully pay accepted by the person on whom it is drawnı, need not the sum assigned to his creditor, and if be does, this be noticed. That a court of law could not recognize is no defense to a bill by the assignees. The doctrine, and enforce such an assignment except against the carried to this extent, effects a substantial change in assignor, if the money came into bis hands, is con- the law. Under the old rule, the debtor could with ceded. The assignee could not sue at law in the name safety settle with his creditor, and pay him, unless he of the assignor, because he is not an assignee of the had notice or kuowledge of an assignment of the whole whole of the debt. He could not sue at law in his own of the debt; under this rule he cannot, it be name, because the city of Newton has not promised have notice or kuowledge of an assignment of any him that it will pay him $600. The $600 is expressly part of it. It may be argued, that if a bill in equity made payable "out of the money reserved as a guar- can be maintained against the debtor by an assignee anty by said city," and by the contract, the balance of a part of the debt, it must be on the ground not only reserved was payable as one entire sum, and at law a that the plaintiff has a right of property in the sum debtor cannot be compelled to pay an entire debt in assigned, but also that it is the debtor's duty to pay parts, either to the debtor or to assignees of the the sum assigned to the assignee, and that if this is so, debtor, unless he promise to do so. Courts of law it follows that after notice of the assignment the originally refused to recognize any assignments of debtor cannot rightfully pay the sum assigned to the choses in action made without the assent of the assigpor. debtor; but now, for a long time, they have recognized The facts of this case however do not require us to and enforced assignments of the whole of a debt, by decide whether a bill can be maintained after the permitting the assignee to sue in the name of the as. debtor has paid the entire debt to his creditor,although signor under an implied power which they held to be after notice of a partial assignment. The city of New. irrevocable. Partial assignments such courts hare ton, in its answer, says, that it is willing to pay said never recognized, because they hold that an entire balance to such person or persons as should be justly debt camot be divided into parts by the creditor entitled to receive the same, whether said plaintiff or without the consent of the debtor. It is not wholly a said Gilkey, as such assignee," and prays “that said question of procedure, although the common-law pro- plaintiff and said Gilkey may interplead and settle cedure is not adapted to determining the right of dif- and adjust the demands between themselves, and that ferent claimants to parts of a fund or debt. The rule the honorable court shall order and decide to whom has been established, partially at least, on the ground said sum shall be paid." This is in effect asking the of the entirety of the coutract, because it is beld that
aid of the court in much the same mayner as if the a creditor could not sue his debtor for a part of an en- city of Newton had brought a bill of interpleader, and tire debt; and if he brought such an action, and re- the proceedings are not open to the objection that the covered judgment, the judgment was a bar to an ac- court is compelling the city of Newton to assent to an tion to recover the remaining part. There must be assignment against its will. This is the first bill in distinct promises in order to maintain more than one equity to enforce a partial assignment of a debt which action. Warren v. Comings, 6 Cush. 103.
has been before this court. It has been often declared It is said that in equity there may be, without the here that there cannot be an assignment of a part of consent of the debtor, an assignment of a part of an an entire debt without the asseut of the debtor, but entire debt. It is conceded, that as between assignor the cases are all actions at law, and in the majority and assignee, there may be such an assignment. The of them the statement was not necessary to the delaw, that if the debtor assents to the assigument in cision. such a manner as to imply a promise to the assignee to In Tripp v. Brownell, 12 Cush. 376, the aotion was pay to him the sum assigned, then the assignee can assumpsit to recover the amount of the plaintiff's lay maintain an action, rests upon the theory that the as- as a mariner on a whaling voyage. The defense was signment has transferred the property in the sum 18- an assignment of the balance due, made by the plainsigned to the assignee as the consideration of the debt- tiff and accepted by the defendants. This was held a or's promise to pay the assignee, and that by the good defense; the court saying: “It is in terms an promise, the indebtedness to the assignor is pro tanto assignment of the whole lay. It must be so by operdischarged. It has been held by courts of equity ation of law. It is not competent for a creditor to aswhich have hesitated to enforce partial assignments sign part of the debt, or create any lien upon it. The against the debtor that if he brings a bill of inter- debtor or holder of the assignable interest cannot, plender against all the persons claiming the debt or without his own cousent, be held legally or equitably fund, or parts of it, the rights of the defendants will liable to an assiguee for part, and to the original credbe determined and enforced, because the debtor, itor or another assignee for another part. Mandeville although he bas not expressly promised to pay the as- v. Welch, 5 Wheat. 277; Gibson v. Cooke, 20 Pick. 15; signee, yet asks that the fund be distributed or the Robbins v. Bacon, 3 Greenlf. 346." debt paid to the different defendants according to Gibson v. Cooke, ubi supra, was assumpsit, brought