pay for the assessment on his own lot, but by mistake paid for that on the lot adjoining. It did not appear that the assessment was cancelled of record, or that when the mistake was discovered and pay ment demanded it could not have been collected of the person liable, or by sale of the premises. D. J. Dean, for appl'ts. . Wm. C. Whitney, for resp't. Held, That plaintiff was entitled to recover back the money paid to him. Where money has been paid under a mistake of a material fact, although there was negligence on the part of the person paying it, it can be recovered back, unless the position of the party receiving the payment has been changed in consequence of it. In that case the person who made the payment must bear the loss occasioned by his negligence. If circumstances exist which take the case out of the general rule the burden of proving them rests upon the party resisting the repayment (43 N. Y. 452; 46 id., 685; 54 id., 432; 55 id., 211). The defendant claimed that the money collected on local assessment is not for the benefit of the city; and that the city acts in making local improvements for the benefit and in behalf of the owners of the property assessed. Held, That the improvements spoken of as local are instituted by the corporation and are public improvements as strictly as any other improvements undertaken by it; that the city receives the money collected through a local assessment in its own right and not as agent or depository. Judgment of General Term affirming COMMON CARRIER. LIABILITY BY LEGAL PROCESS. A common carrier is not liable for the non-delivery of goods taken from his possession by legal process, without any act, fault, or connivance on his part. Nor is he bound to follow them up on behalf of the party for whom he undertook to carry them. But he must give prompt notice that the goods have been seized and taken from his possession. Appeal from Martin Circuit. The complaint alleged that appellant undertook to carry a quantity of wheat from Bridgeport, Illinois, to Vincennes, Indiana, and a failure to deliver. The appellant pleaded, in substance, that while the wheat was in a car of the company at Bridgeport awaiting the coming of a train to transport it to Vincennes, without any act, fault, or connivance of defendant or its servants or agents, one Johnson sued out of the Circuit Court of Lawrence County, Illinois, a writ of repleviu by virtue of which the Sheriff seized the wheat and took it out of possession of defendant and still retains it, by reason whereof the defendant was prevented from transporting or delivering it. It was averred that the Lawrence Circuit had jurisdiction. A demurrer to the answer, on the ground it did not state facts sufficient to constitute a defense, was filed by plaintiffs and sustained by the Court. Defendant declining to answer further, there was judgment for plaintiffs. Held, 1. It is impossible for the carrier to deliver the goods to the consignee when they have been seized by legal process and taken out of his possession; the form of the process is immaterial, as in any case the carrier must yield to the authority of legal process. After the seizure of the goods by the officer, by virtue of the process, they are in the custody of the law, and the carrier cannot comply with his contract without a resistance of the process and a violation of law. The right of the officer to hold the goods involved questions which could only be determined by the tribunal which issued the process, and the carrier had no power to decide them. fendants, who were highway commissionIt makes no difference that the process ers, in their official capacity, to compel was issued in a State different from that them to enter into a contract with plainin which the plaintiffs reside. The car- tiff, and to restrain them from contracting rier must obey the laws of the various with another. The complaint also asked States in which he follows his calling. damages against them as individuals for a The carrier is deprived of the possession refusal to consummate an alleged agreeof the property by a superior power-the ment. It appeared that plaintiff, in compower of the State-the vis major of the pliance with a public notice of defendcivil law-and in all things as potent and overpowering, as far as the carrier is conecrned, as if it were the "act of God," or the "public enemy." 2. The carrier cannot stop, when goods are offered him for carriage, to investigate the question of their ownership, nor is he bound, when the goods are so taken out of his possess on to follow them up, and be at the trouble and expense of asserting the claim thereto of the party to or for whom he undertook to carry them. 3. That the carrier should have given prompt notice to the plaintiffs of the seizure; that if negligent in this respect he will be liable. ants, as commissioners, asking for proposals for doing certain work of which they had charge, made a written offer to do the work at prices named, and proposed the names of the two sureties for the performance of his contract. This offer and proposal were acceded to by the defendants, and they were ready to consummate the contract, which was to be in writing, in accordance with its terms. One of the sureties proposed by plaintiff refused to qualify, and for this reason the contract was not consummated. Defendants gave plaintiff time and notified him that a surety, proposed by him as a substitute, would not be accepted, and plaintiff made The answer not averring the giving of no farther effort to get the surety first pro this notice, is bad. Judgment affirmed. Opinion by Downey, J. CONTRACT. posed to reconsider his refusal t qualify or to secure one who would be satisfactory. Adams & Swan, for applt. C. J. Lowrey, for respts. Held, That plaintiff could not recover, that he could not maintain an action, as the minds of the parties had not met in a perfected agreement; that until the agreement had been reduced to writing and signed by the parties the agreement was still in fieri. Defendants were not obliged to accept any sureties but those proposed. N. Y. COURT OF APPEALS. Adams, applt v. Loes et al. respts. Dec:ded Dec. 21st, 1875. When Cmmissioners advertise for proposals for doing certain work, and party offers, in writing, to do it at prices named, and proposes names of two sureties, and offer and proposals are acceded to, and afterwards one of the sureties refuses to qualify. Hicks v. Whitmore, 12 Wend, 548; and another is offered and refused, Mills v. Hunt, 30 id., 431, disting ished. the agreement is still" in fieri," and Public officers, in determining whether no action can be maintained to con- a proposed surety is a proper person to be summate the agreement or to recover. The parties are not obliged to accept sides his present reputed or actual pecuaccepted, may consider other things be any sureties but those first proposed. sides his present reputed er actual pecuPublic officers are to consider character, niary responsibility; his residence, voca&c., as well as pecuniary responsi- tion, business, business habits, the charbility, in accepting sureties. acter of his investments and property, his character for integrity and prudence may This action was brought against de properly influence their judgment. officers quære. DEED. ASSESSMENT ROLL· N. Y. COURT OF APPEALS. senti, and, if broken at all, was As to whether such an action as this broken as soon as the deed was can be maintained against such public executed (4 Kent Com. 471; Rawle on Cov. of Title 89; 26 N. Y, 495); and unless an action would lie at once there is no breach of the covenant; that no lien or incumbrance on the lands was created by the entry of the land in the assessment roll of the assessors; that the assessment roll is the basis upon which the Board of Supervisors acts in appor tioning the tax; but it is in no sense the imposition of a charge upon the land,and the assessment roll not having been acted upon by the Board of Supervisors, and the tax imposed until after the land had been conveyed to the plaintiffs, they could not The entry of the land in the assessment recover (Rundell v. Lakey, 40 N. Y. 513, roll is not an imposition of a charge up-distinguished). on the land. Barlow. et al., resp't, v. The St. Nicholas National Bank of N. Y., appl't. Decided December 14, 1875. A covenant against incumbrances, in a dced, is a covenant, in presenti, and there can be no breach unless an action thereon would lie at once. Defendant had owned the farm for a year previous. The assessors of the town in which the farm was situated had as sessed it in June of that year to one E.. the occupant, and completed their assessment roll in August thereafter, as required by law, and delivered it to the Board of Supervisors of the County, at their annual meeting, held November 9, of Supervi1868, and the Board of sors, pursuant to law, extended the taxes thereon and delivered it with their warrant to the collector of the town. The Edward H. Hawkins, for appl't. Held, That the covenant upon which this It would be an unwarrantable extension of the ordinary and natural meaning of the general covenant against incumbrances to hold that it applies to a tax levied after the covenant was made. Order of General Term reversing judgment for defendant entered on report of referee reversed, and judgment affirmed. Opinion by Andrews, J. DEMAND. SUPREME COURT. GEN. TERM., FIRST Simeon Salam n, resp., agst. Marcus Decided Jan. 28th, 1876. In an action to recover personal property, no demand is necessary of a defendant who wrongfully detains the property, not being a bona fide purchaser. The refusal of a judge to allow a witness to be sworn after the case has been closed, is not reviewable on appeal. Where there are slight circumstances tending to establish the bad faith of a purchase, it cannot be said by an Appelate Court that it was not sufficient for the purpose. Appeal from a judgment recovered action was brought was a covenant in pre-' against defendant and appellant. This was an action brought to recover the weight to be given to the testimony the possession of personal property. The complaint alleges that plaintiff, Judgment affirmed. Opinion by Brady, J.; Davis, P. J being induced by faise and fraudulent and Daniels, J., concurring. representations, and relying upon same, sold and delivered to one Prowler a quantity of tobacco. That Prowler transferred same to defendant, who wrongfully detains same. EQUITABLE MORTGAGE. Decided January 29th, 1876. Answer substantially, a general denial. In Pennsylvania an equitable mort No demand by plaintiff from defendant for the return of the goods previous to the commencement of the action was shown. After the case had been closed and summed up, the defendants requested the privilege of calling Prowler as a witness, which request was denied. It was urged on appeal that there was no evidence to support the finding of the jury, that defendant was not a bona fide purchaser; that the judge erred in refusing to direct a judgment for the defendant, no demand having been shown that a new trial should be granted by reason of the judge's refusal to permit Prowler to be sworn after case was closed. Lewis Saunders, defts. atty. 1 gage cannot be created by a deposit of title deeds, but a Court of Equity will not enforce their return until the party depositing them has complied with the agreement under which they are held. Bill filed by plaintiff praying that defendant be compelled to surrender a deed for a tract o: land, of which plaintiff is owner. It sets up that the deed was left with defendant, until such time as plaintiff should demand it, a demaud and refusal. The answer sets up that the deed was left with defendant upon an agreement that he should hold it until plaintiff repaid certain loans made him by defendant, and that the money loaned had not been returned. To this answer no reply is made, nor is the truthfulness of its averments in any way questioned. Held, on appeal, That in case the defendant was not a bona fide holder, no demand before suit was necessary, and by the finding of the jury the character of Held, The prayer of the bill is sought defendant's title is declared and no de- to be enforced upon the ground, that admand was necessary. That the refusal mitting the truth of the case made by the of the judge to allow Prowler to be sworn defendant, the contract is, at most, an atwas entirely in the discretion of the judge tempt to maintain an equitable mortgage and not reviewable by this court, and, by a deposit of the deeds as a security for further, that although the evidence tend- money loaned, which cannot be done. ing to show the defendant was not a bona Bowers v. Oyster, 3 Penna., 239, decides fide purchaser was very slight, there were that there can be no such thing as a valid circumstances tending to establish the and efficacious parol mortgage in Pennsyl bad faith of the purchase, and it cannot vania; first, because it is contrary to the be said by an Appellate Court that it was statute of frauds and perjuries, and secnot sufficient for the purpose. It is im- ond, the recording acts and the act prepossible for Appel ate Courts to reproduce scribing the mode of proceeding to enforce the trial as it occurred. The jury have payment of debts due upon mortgage the advantage of seeing and hearing the stand in the way of giving effect to a parol witnesses, and are best able to judge of mortgage. A contrary doctrine had been taken for granted in the case of Reikert V. Madeira, 1 Rawle, 325; Shietz v. Deiffenbach, 3 Barr, 233, reaffirms the doctrine of Bowers v. Oyster. This case gives rise to no such question. The defendant does not claim that the deposit of title deeds with him, to be held until the money loaned to the plaintiff is repaid, in any proper sense constitutes him a mortgagee of the premises; nor has he in any way sought to enforce his claim as a valid claim against the land. The single question is, can the plaintiff successfully invoke the aid of a Court of Equity to enforce the return of his deed, before he has complied with his agreement with the defendant. The familiar p inciple, that every one must come into equity 'with clean hands, applies here with all its force; no man being entitled to claim to have equity awarded to him who is not himself ready to do equity, and who does not proffer to do it. It is clearly contrary to that which is conscientious and just to aid a party to violate his own agreement, whereby he has taken an advantage, and, in this case, a large pecuniary advantage, to himself. The deed in question was deposited with the defendant, to hold until the plaintiff would comply with his obligation to repay the money, which had been loaned on the faith of this deposit of the deed, and the promise of repayment. There has been no repayment, nor an offer to repay. The plaintiff must, therefore, be left to seek whatever legal right he 'may have, having no standing in a Court of Equity. Bill dismissed. Opinion by Allison, P. J. whichever has accredited him must bear the los8. Sur rule for new trial. Action to recover from defendants who were stock brokers, the value of 300 shares of the stock of the Pacific Mail Steam: ship Company, which had been sold and negotiated with them by one Charles A. Harte, a clerk or book-keeper in the em ploy of the plaintiffs. Harte had gained the confidence of the plaintiffs, and by means thereof had access to their box in the vault of the Central Bank, from which he stole the certificates of the said stock, and without plaintiffs' knowledge parted with them to the defendants. Upon the trial the plaintiffs proved their property, the theft o Harte, and the conversion of the securities by defendants. Upon the part of the defendants it was mainly contended, that the certificates as made and endorsed, were negotiable instruments, made so by the customs of their peculiar business. They were made and endorsed as follows: 100 shares. No. 51694. (Vignette.) Be it known that Joseph J. Lawrence is entitled to one hundred shares of one hundred dollars each in the Capital Stock of the Pacific Mail Steamship Company, transferable only on the books of the Company by him or his attorney on surrender of this certificate. P. MCG. BELLOWS, THEO. T. JOHNSON, |