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debtors or between principal and solvent debtor and his assignees which surety or an insolvent debtor and his will make a payment by one evidence assignees which will make a payment of an acknowledgement of the debt by by one evidence of an acknowledge the other so as to revive it. 2 Comst., ment of the debt by the others so as

to revive it.

523; 1 Kern., 176; 18 N. Y., 558; 34

The delivery of notes in part payment Id., 175. operates only as of the day of deliv

Whipple v. Blackington, 97 Mass.,

ery to take the case out of the statute. 476, distinguished.

This action was to recover a balance

Order of General Term, reversing

of an account for goods sold, &c., for judgment of Special Term for plainwhich defendant was indebted April tiff, affirmed.

10, 1868. The defense was the statute of limitations. On April 14, 1868, defendant indorsed and delivered to the

Opinion by Allen, J.

ARREST.

FIRST DEPARTMENT.

The Meriden Malleable Iron Com

pany, respt. v. Charles J. Baudman, Decided July 6, 1876.

plaintiff's two notes for $500 each, made N. Y. SUPREME COURT. GENERAL TERM. by B. & G., dated April 6, 1868, and payable in two and five months, with interest. The notes were secured by a chattel mortgage made to defendant, which he assigned to plaintiffs. The notes were paid upon their maturity to plaintiffs' firm, and were credited to defendant's account on their books, $500 on June 9, 1868, and $500 Sept. 17, 1868. This action was commenced June 5, 1874.

Samuel Hand, for applt. Jas. B. Lockwood, for respt. Held, That the delivery of the notes to plaintiff operated only as of the day of their delivery to take the case out of the statute of limitations. 3 B. & Ad.,

507.

To sustain an order of arrest the affidavit upon which it is founded must set forth the facts upon which the conclusions are based.

Appeal from order denying motion to discharge order of arrest.

The motion was made upon the assumed insufficiency of the affidavit on which the order of arrest was granted. The allegations in relation to the fraud are as follows:

"That prior to the 6th day of March, 1875, this defendant applied to this de ponent as an officer of the plaintiff, to That the payments of the notes by furnish him certain goods, and as an inthe makers at their maturity did not ducement to the plaintiff to sell the said operate as an acknowledgement of the goods, well knowing the representaresidue of the account, as they were tions to be false and untrue, and, that not the authorized agents of defend- he was insolvent and utterly unable to ant. 53 N. Y., 442; 2 Lans., 120; 49 pay his debts, represented falsely and N. Y., 155; 7 Wend., 408; 20 Me., fraudulently that he was the owner, in 315; 5 Pick., 54. No such acknowl- his own right, of real estate worth edgment or promise by defendant could be implied therefrom.

Also held, That there is no agency as between several joint debtors or between principal and surety, or an in

$50,000, clear and unencumbered, excepting to the extent of five thousand dollars.

"That said plaintiff sold said goods upon the faith of said representations,

and believing the same to be true and from the company's office at Independ

relying thereon.

"That this deponent has only recent ly learned that said representations are false and untrue."

L. Loften Kellogg, for respt.
J. Henry McCarthy, for applt.
Held, The affidavit is defective be

cause the facts are not set forth on
which the conclusions stated in it are

founded, and which form the basis of the proceeding. In other words the affidavit contains recitals in effect and

not facts in detail.

Order appealed from reversed, with $10 costs and disbursements to abide

event.

Opinion by Brady, J.

ence, where the goods were to be delivered to him. They reached Independence on the 4th and 7th of January, 1872, and notice was immediately thereafter given by mail as per special agreement. The notice contained the following clause:

"The contract of this company as common carriers ends upon the arrival of goods at our depots."

This notice did not reach defendant

until the 20th of January. The fire took place on the 15th.

It was claimed that a common car rier is relieved of its extraordinary liability as an insurer when it has carried the goods intrusted to it safely and deposited them in a safe warehouse.

Held, That the company's liability as

COMMON CARRIERS. LIABILI carrier had terminated before the

TY.

SUPREME COURT OF KANSAS.

in error.

A carrier's liability continues until the consignee has had a reasonable time to call for, examine, and remove the goods.

fire, and that therefore it was not responsible for the destruction of the

Leavenworth, Lawrence and Galves-goods; that the carrier's liability conton R. R., pl. in error v. Maris, deft. tinues until the consignee has had a reasonable time to call for, examine, and remove the goods; but that such reasonable time is not a time varying with the distance, convenience, or necessities of the consignee, but is such time as will enable one living in the vicinity of the place of delivery, in the ordinary course of business, and in the usual hours of business, to inspect and remove the goods. 18 Minn. 133.

A reasonable time is such as would en

able one living in the vicinity, in the ordinary course of business, and in the usual hours of business, to inspect and remove them. Where it is agreed that notice of arrival shall be given the consignee, the It was insisted, however, that notice. reasonable time runs from the date of receipt of such notice, unless it was required of their arrival, and that contains a stipulation that the liabilno notice was received until after their ity of the carrier shall cease on the destruction. arrival of the goods.

This was an action brought by defendant in error to recover for goods destroyed by fire in a depot belonging to plaintiff in error.

Held,That whether independent of the contract any notice was requisite, may be doubted. See 34 N. Y. 497; 44 N. Y. 505; 3 N. Y. 322; 42 Ill. 133; 18 Minn. 133; 16 Mich. 79, and Defendant in error was a merchant 6 Jones (Law), 343. That in those at Winfield, a place about ninety miles | States where notice is required to ter

charge defendants with a debt (money loaned) allowed to be due by the New York Company to the California Bank, because they as such trustees did not cause to be filed the report of the condition of said mining company as required by 12th section of the act under which said mining company was organ

minate the carrier's liability, the reasonable time dates from the giving of the notice, but in the present case the form of notice used by the company attempts to limit the effect thereof, and plainly states that the company's liability as carrier is to terminate upon the arrival of the goods, and the defendant in error had knowledge of this by the ized. The answer put in issue the receipt of other similar notices.

Judgment reversed, and case remanded with instructions to enter judgment. in favor of plaintiff in error. Opinion by Brewer, J.

INCORPORATION.

existence of the plaintiff as a corporation.

At the trial of the issues, the plaintiff, in order to prove its existence as a banking corporation, introduced a general statute of California, passed in 1853, which provided that "Corporations for manufacturing, mining, me

N. Y. SUPREME COURT. GENERAL TERM, chanical or chemical purposes, or for

FIRST DEPARTMENT.

the purpose of engaging in any species.

The Bank of California, applt., v. of trade or commerce, foreign or doDavid J. Grath and others, respts.

Decided May 1, 1876.

mestic, may be formed according to the provisions of this act," then follows

An act of the Legislature providing provisions for the formation of corpo for the formation of corporations for rations under the act by filing certifi manufacturing, mining, mechanical cate, &c. or chemical purposes, or for the pur- The certificate under which plaintiff pose of engaging in any species of claimed to be incorporated, filed under trade or commerce, foreign or domestic, does not permit the incor pothe act aforesaid, May 12, 1864, was ration under it of a banking corpo- introduced, and stated the objects for which the company is formed are to engage in and carry out the business of banking to such extent, and in all such

ration.

In an action brought by one corporation against trustees of another corporation to recover by way of penalty for failing to file a certificate of the branches as may be legally done under condition of such company, a debt the constitution and laws of the State incurred by the corporation of which of California, and it contains no other the defendants were trustees, defend-provision as to the objects of the organants may contest plaintiff's incorpo-ization of such corporation.

ration.

Plaintiff relying upon this evidence This action is brought by the plain- to establish its existence as a corporatiff, alleging itself to be a banking cor- tion, defendants moved to dismiss the poration organized under and by virtue complaint on the ground "that a bankof the laws of California, against ing corporation could not be created certain trustees of La Abra Silver under said act of the Legislature of Mining Company, a corporation or the State of California of 1853, and ganized under the general mining laws that said act and said certificate of of the State of New York, seeking to incorporation did not create the plain

tiff a corporation for carrying on The defendants were not dealers the business of banking or at all." The with the plaintiff. They were not motion was granted. Exceptions di- therefore shown to be estopped from rected to be heard in the first instan e denying the existence of the corporaat the General Term and judgment tion. They were clearly at liberty to meantime suspended. contest the validity of plaintiff's corporate existence.

On the argument of the appeal it was urged by the appellant, that when the court directed a non-suit, the appellant was in the midst of its evidence, and non-constat but it would have given other and additional proof of its incorporation.

Thos. L. Snead, for applt.
Britton & Ely, for respts.

Held, That there was no error in the direction of the court dismissing the complaint.

That with reference to the point now

made on the part of the plaintiff that

when the court directed a non-suit, the plaintiff was in the midst of its evidence, non-constat but it would have given other and additional proof of its incorporation, that point should have been suggested to the court below. There is nothing in the case to indicate any such suggestion, and we must assume from what does appear that when the defendant raised the question of the validity of the incorporation it was substantially conceded that the plaintiff had exhausted its proof on that subject, and that the transaction for which the action was brought was in fact the loaning of money by the plaintiff as a bank in the exercise of banking powers.

That the attempt to create, under the act referred to, a banking corporation having the powers expressed in the certificate, was of no legal force, and that the plaintiff cannot maintain this action based upon a transaction which was, as the complaint substantially shows, an exercise of its usurped bank ing powers.

Motion for new trial upon the exceptions denied, and judgment directed for the defendants with costs.

Opinion by Davis, P. J.; Brady and Daniels, JJ., concurring.

APPEAL.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPARTMENT.

Minnie Hauck, applt., v. Samuel Craighead et al. as executors, &c., and Lafayette Harrison, defts.

Decided July 6, 1876.

No appeal being taken from an order in behalf of plaintiff amending the complaint upon the trial, the defendant being successful, it stands intact as a part of the case, with all the benefit to the plaintiff to be derived therefrom.

Evidence is admissible to show how a person came to sign a contract in an unusual place or what his relations were to the contract.

Where there is a conflict in the evidence upon a material issue in the case, the court must submit the ques. tion to the jury.

This action was commenced by the present plaintiff by her guardian, but subsequently she becoming of age, the action was continued in her own name. Samuel N. Pike, one of the original defendants, died since its commencement, and his executors have been substituted in his stead.

Its object is to enforce the liability of the original defendants, Harrison and Pike, on a contract purporting on

its face to be made between the plain- and exception showing the occurrences tiff and the defendant Harrison only, and conversation which took place at but upon the margin of which Pike the execution of the contract by Pike, to affixed his name. The following is a the effect that plaintiff would not make copy of the contract. a contract alone with Mr. Harrison, and plaintiff's father told Mr. Pike that unless he would join in and become responsible for the contract, plaintiff would not make a contract, and Mr. Pike said the contract should be made and he would come to her wishes, and he signed his name to the contract.

"Memorandum of an agreement made this day, February 18, 1868, between Lafayette Harrison and Miss Minnie Hauck, as follows:

"Miss M. H. engages herself as prima donna asoleta, for operas and concerts, for the term of two months from the 24th of February, 1868.

"Miss Minnie Hauck obliges herself to conform to all the rules and regulations of the theatre.

"Mr. Harrison obliges himself to pay Miss Minnie Hauck the sum of fourteen hundred dollars per month.

SAMUEL N. PIKE.

"L. F, HARRISON.

"It is also understood and agreed that Miss Hauck shall sing at least three (3) times in each week, all extra performances to be paid at the rate of one hundred ($100) per performance.

"It is also agreed that the salary shall be paid in each and every week." The cause of action as set forth in the complaint against the executors of Pike, at the commencement of the trial, was in form on his guarantee for the performance of the agreement on the part of the defendant Harrison which the latter made with the plaintiff.

At the trial, the complaint was dismissed upon the evidence as to the representations of Pike, upon the ground that the contract as made by Pike was made by him as guarantor, and that a principal and surety liable upon separate instruments cannot be joined in one action, on the authority of 10th Barb., 638.

G. V. N. Baldwin, for applt.
A. C. Fransiola, for respt.

Held, That the defendant not having appealed from the order on the trial amending the complaint, it stands intact to be considered as part of the case with all the benefit to the plaintiff to be derived therefrom because the defendant succeeded.

The evidence given upon the trial as to the conversations and occurrences at the time of the execution of the contract by Pike was not to vary or contradict the agreement, but to show only On the trial the court allowed an why it was that he signed the paper amendment of the complaint which where he did and in that way to show changed the cause of action and charged what he meant to assume—what, in the decedent, Pike, as an original other words, was his relation to the joint contractor or promissor and ren-contract. dered it necessary for the plaintiff to establish by competent proof that such was his relation to her.

Held further, That it is quite clear that the decedent meant to be bound in relation to Harrison's contract, and if After the amendment evidence was the plaintiff could regard him as an allowed on the trial under objection original contractor or guarantor, the

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