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Statement of case.

Woods v. Wilder, Dec., 1870, 43 id., 164; Griswold v. Waddington, 15 John., 57; 16 id, 438; The Rapid, 8 Cranch, 155; Scholefield v. Eichelberge, 7 Peters, 585; Allan v. Russell, 12 Amer. Law Reg., 302; Billgery v. Branch, 17 Amer. Law Reg., 33.) The commencement of the war was prior to the appointment of Burke. (Swinnerton v. Col. Ins. Co., 37 N. Y., 186.) Defendant is not estopped by his acts from setting up the dissolution of the partnership. (Griswold v. Waddington, 16 J,, 484487; Coppell v. Hall, 7 Wal., 558). Plaintiff during the war had no status and could not sue in New York. (Sanderson v. Morgan, 39 N. Y., 231; 2 Wal., 421.)

G. W. Comstock and A. M. Spier for the respondent. The doctrine as to the effect of the war upon existing contracts is not applicable in these actions. (Swinnerton v. Col. Ins. Co., 37 N. Y., 174.) The war could have no effect on defendants' liability on paper, existing before the war broke out; it dissolved contracts as to the future only. (Griswold v. Waddington, 16 John., 493; Wood v. Braddock, 1 Stanton, 104, 105; Buchanan v. Curry, 19 John. R. 137, 142, 143). Notice to the firm, at its place of busipess in New Orleans, was sufficient, and was notice to all its members. (Gowan v. Jackson, 20 John., 176-179; Court House v. Parker, 1 Camp., N. P. R., 82; Brown v. Turner, 15 Ala., 832 ; Carter et al. v. Thompson, 19 id., 717-727; Dabney v. Stidger, 1 S. & M., 749; Dabney v. March, 22 Maine, 184; Bayes on Bills, cited in note 3 to Edwds. on Bills, 632). Defendants carried on the business after the war broke out, and are estopped from setting up as a defence the law they deliberately violated. (Story on Contracts, $ 497; Collyer on Part., $ 97, note, $ 784). The agency was not dissolved or even suspended by the war. (Clark v. Mooney, 10 John. Ch.; Griswold v. Waddington, 15 John., 57, 68; Buchanan v. Curry, 19 id., 137–141; Conn. v. Penn., 11 Peters' C. C. R., Pa., 496–524; Robinson v. International Lf. Ins. Co. of London, 42 N. Y., 62; King v. Hanson, 4 Call., 259;

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Opinion of the Court, per PECKHAM, J.

Nousseaux v. Urquahart, 19 La. A. R., 485; Dennison v. Nubrick, 3 Wash. C. R., 403; Ward v. Smith, 7 Wall., 452; Paul v. Christie, 4 H. & McH., 161.) The conduct and management of the business, being restricted to New Orleans, would not be affected by the war. (Buchanan v. Carry, 19 John., 137; Kershaw v. Kelsey, 100 Mass. R., 561; Matohattan Life Ins. Co. v. Warwick, 20 Grattan, 614.)

PECKHAM, J. The defendant, Matthews, who alone defends, insists that the partnership formed on the 27th day of March, 1861, by the defendants, to be void in case Bradner, Sr., then in Nassau, a proposed partner in commendam, refused to assent, became void by his refusal to give such consent, and that the contract of copartnership thereby became utterly void. But in fact the partnership did continue, thongh it might have been closed at once under that provision. It was not terminated in fact, as the evidence plainly shows.

There is some ground for holding that the notice of the dissolution of the firm, published by them, or by those residing in New Orleans on the 21st of October, 1861, in the New Orleans Picayune, put an end to the firm, but I do not intend to discuss that point.

The bar to this recovery is the dissolution of this copartnership by the civil war prior to the indorsement and discount of the note in suit.

The general rule that war, civil or inter gentes, dissolves all partnerships between citizens of hostile States, and converts every citizen of one hostile State into a public enemy of the other, is conceded, as it may well be. (The Prize Cases, 2 Black., 685; Mrs. Alexander's Cotton, 2 Wall., 404; The Venice, id., 258; Woods v. Wilder, 43 N. Y., 164; Swinnerton v. The Colum. Ins. Co., 37 id., 178; Griswold v. Waddington, 15 J. R., 57; Griswold v. Waddington, 16 id., 438.

This rule is based upon principles of public policy, and is not affected by the intentions of the parties. (Cases above cited.)

But it is urged that this was not a commercial partnership,

Opinion of the Court, per PECKHAM, J.

and that therefore the rule as to the effect of civil war upon such partnerships has no application to this. Waiving the question as to the rule of law, the fact is plainly otherwise. The plaintiff insists that by the laws of the partnership no shipments were to be made out of New Orleans; not so. The contract in terms provided for a partnership "for the cotton factorage and general commission business in New Orleans." But it was agreed that the firm “shall never purchase or hold at any one time more than one thousand bales of cotton, nor shall any purchases be made" (not that they will not make shipments) “for shipments, but only for sale in New Orleans."

This restriction simply applies to purchases for the purpose of shipments--not that they would not ship cotton in the course of their commission business for others-cotton on which they should make advances, or title to which they might acquire in any way, but only they would not buy it for that purpose. This limitation, too, seems entirely confined to cotton. But it is clear that the firm in fact did a large commercial business-commercial in a liberal sense of the term in buying and selling cotton, and various other products, in different States, in shipping them to others, to New York, to Liverpool, and in remitting proceeds to New Orleans, in purchasing bills of exchange and in other commercial transactions between the Confederate States and the United States, etc., etc.

This appears by the letters of the defendant, Matthews, introduced by the plaintiff.

There is nothing in the case of Kershaw v. Kelsey, 100 Mass., 561, a sound decision, that aids the plaintiff upon such facts.

It is further urged that the defendant is estopped from alleging that he resided in New York, after describing himself, in April, 1861, in his power of attorney to defendant's agent, as of the city of New Orleans.

In the articles of partnership Mitchell is described as of New York, and in fact he resided there continuously from

Statement of case.

the time of the execution of the power of attorney, and there is no proof whatever that the plaintiff at the time of discounting this note supposed or believed that Matthews lived in New Orleans, or that it discounted this note upon any such idea, or that it had ever seen this power of attorney. An estoppel cannot be based upon such facts. (Lawrence v. Brown, 1 Seld., 394.) It is superfluous to discuss the law when there is no fact for its application.

Judgment should be reversed and new trial granted, costs to abide the event.

All concur.

Judgment reversed.

177

MARY HELEN GRYMES, Respondent, v. ROBERT S. HONE, 113_390

Executor, etc., Appellant.

49 17 117 319

49 17 125 579 125 757

To constitute a valid gift mortis causa, three things are necessary: 1st. It

must be made with a view to the donor's death. 2d. The donor must die of that ailment or peril. 3d. There must be a delivery. It is not necessary that there should be an express qualification in the transfer or the delivery; it may be found to be such a gift from the attending cir

cumstances, although the transfer or the delivery be absolute. Defendant's testator being the owner of 120 shares of bank stock, included

in one certificate, made an absolute assignment in writing of twenty shares to the plaintiff. This he handed to his wife, to be kept by her and delivered to the plaintiff upon his death. At the time of executing the assignment the donor was about eighty years of age, in failing health, and so continued until his death, which occurred about five months thereafter. Held, this was a valid gift mortis causa ; that the equitable title to the stock passed by the assignment; that defendant was trustee for plaintiff, by operation of law, to make the gift effectual, and that a judgment requiring him to produce the certificate and cause a transfer of the twenty shares to be made to plaintiff, was proper.

(Argued February 26, 1872 ; decided March 26, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the third judicial department, affirming a

SICKELS–VOL. IV. 3

Statement of case.

judgment in favor of plaintiff, entered upon the report of a referee.

The action is brought to recover twenty shares of the stock of the Bank of Commerce of the city of New York, or its value, claimed by plaintiff as a gift mortis causa by Federal Vanderburgh, defendant's testator. The facts sufficiently appear in the opinion. The referee directed judgment that defendant, as executor, permit the transfer of the twenty shares of stock 'on the books of the bank, and, for that purpose, surrender the certificate; that he account for dividends received after the testator's death, and in case the stock was sold that he pay its value out of the estate. Judgment was entered accordingly.

John H. Reynolds for the appellant. The facts do not constitute a valid gift causa mortis. (1 Story's Eq., $ 607 a ; 2 Redfield on Wills, 299, 300, 302; Weston v. Hight, 5 Shep., 287; 3 McN. & G., 664; Duffield v. Elwes, 1 Bligh, N. S., 533; Wells v. Tucker, 3 Binney, 366; Irish v. Nutting, 47 Bar., 370; Decheimer v. Gautier, 5 Robt., 223; Edwards v. Jones, 1 Mylne & Craig, 226; 1 White & Tudor's Lead. Cases, 837; May on Vol. Alienations, 381 to 400 ; Harris v. Clark, 8 N. Y., 93, 121; 2 Kent's Com., 438; Fargrearson v. Case, 2 Coll., 356; 38 Barb., 530; 34 N. Y., 80; Ward v. Turner, 2 Vesey, Jr., 431; Pennington v. Gettings, 2 Gill & Johns., 208; Ellison v. Ellison, 6 Vesey, 602; 1 Story's Eq., 433, note; 1 Vesey, Jr., 50 ; 18 Vesey, 91, 93, 99; Fortiscue v. Burnett, 3 Mylne & Keen., 36; Edwards v. Jones, 1 Mylne & C., 237; Antrobus v. Smith, 12 Vesey, 39; Lambert v. Overton, 13 W., 227; Jones v. Locke, 1 Ch. Appeals, 25; Dillon v. Coppin, 4 Mylne & Craig, 647; Searles v. Laro, 15 Simons, 95; Woodford v. Chamley, 28 Beavan, 96; Penfield v. Madd, 4 Eq. Cases, 562; Summer v. Danby, 25 Jurist, N. S., Part 1, p. 426 ; see also Coningham v. Plunnett, 2 Young & Coll. C. C., 245; Price v. Price, 14 Beavan, 598; Scales v. Mande, 6 De Gex, McN. & G., 43; Weale v. Ollin, 17 Beavan, 252; Peckham v.

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