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Parish v. Golden (35 N. Y., 462),

explained. Westfall v. Preston
et al.

355

Learned v. Smith (44 N. Y., 618),

explained. Peters et al. v. Dela-
plaine et al.

367

Allerton v. Belden (3 Lans., 492),

reversed. Allerton v. Belden, 373

Saunders v. Bacon (8 J. R., 485), and

Tappan v. Ely (15 Wend., 362),
explained and distinguished. Bene-
dict et al. v. Coroden.

404

Ryan v. N. Y. C. R. R. Co. (35 N. Y.,

210), explained. Webb v. R. W.
and O. R. R. Co.

427

Babcock v. L. S. and M. S. R. R. Co.

(43 How. Pr., 317), reversed. Bab-
cock v. L. S. and M. S. R. R. Co.

491

Wright v. N. Y. C. R. R. Co. (25 N.

Y., 562), limited and explained.
Laning v. N. Y. C. R. R. Co. 530

Clapp v. Wilson (5 Denio, 288), criti-

cised. Romertze v. East River Nat.
Bank.

580

ment provided for the issuing of
bonds and stock of the new com-
pany, and apportioning them
among the holders of the mort-
gage bonds, actually issued, of the
old company and among certain
other specified classes of creditors;
that in pursuance of the agreement
the property was purchased for
less than the amount of mortgage
bonds held by the parties to the
agreement and was afterward trans-
ferred to the new company, its
stock and bonds issued, and distri-
buted as stipulated; that the old
company was indebted to plaintiff
upon a contract for iron rails fur-
nished to lay its tracks, and, under
the contract of purchase, plaintiff
was equitably entitled to its mort-
gage bonds for the balance claimed.
This claim was unprovided for in
the creditors' agreement. Plain-
tiff was a party to that agreement,
he holding a large amount of the
mortgage bonds provided for
therein, and he received their pro-
portion of the bonds and stock of
the new company. Plaintiff claim-
ed that the bonds to which he was
equitably entitled should be con-
sidered as issued at the time of
making the creditors' agreement,
and that the property in the hands
of the new company was subject
to the trust of providing for them,
as other mortgage bonds were pro-
vided for in that agreement. There
was no allegation of any fraud in
the agreement, or that any of the
stockholders of the old company
derived any benefit thereunder, or
that the foreclosure or sale were
collusive. On demurrer, -Held,
that the creditors who entered into
the agreement were bona fide pur-
chasers, and took the property
clear of any trusts in favor of
other creditors; that although as
between the old company and its
creditor equity would consider
that done which ought to have
been done, the rule did not affect
the rights of third parties (as be-
tween each other) who had con-
tracted in reference to what the
company had actually done, and
especially where the one claiming
the benefit of it was a party to
that contract, assented to its terms
and received its benefits; and that,
therefore, the facts stated did not

People v. Nearing (27 N. Y., 306),

questioned. People ex rel. Wil-
liams et al. v. Haines et al. 593

CAUSE OF ACTION.

1. Assessors are not personally liable

for errors or mistakes in the assess-
ment where they have jurisdiction
and act within the scope of their
authority, but if they exceed their
powers and act without authority,
and in contravention of the sta-
tute prescribing and regulating
their duties, they are civilly liable
to any person injured by their ac-
tion. Clark v. Norton. 243

2. Pláintiff's complaint alleged, in

substance, that certain of the cre-
ditors of an insolvent railroad cor-
poration entered into an agrec-
ment to purchase its property upon
a foreclosure sale, and to organize
a new company for the purpose of
operating the road, which agree-
SICKELS-Vol. IV. 87

constitute a cause of action. Vose ing his lien thereon. The com-
v. Coudrey.

337 plaint further alleged that defend-

ant had in its possession the avails
3. He who by his negligence or mis of the sale of said furniture, which

conduct creates or suffers a fire justly belonged to plaintiff by vir- /
upon his own premises, which, tue of the alleged lien, and wrong.
burning his own property, spreads fully withheld the same from the
thence to the immediately adja plaintiff, to his great damage, etc.
cent premises and destroys the Upon demurrer, Held (ALLEN, J.,
property of another, is liable to FOLGER and RAPALLO, JJ., con-
the latter for the damages sustain curring), that it was immaterial
ed by him. Webb v. R. W. and 0. whether plaintiff's right was based
R. R.

420 upon a legal title to the property,

or upon an equity entitling him,
4. At a time of continued and ex as against defendant, to pursue

treme drouth, while a strong wind the avails thereof; that the clause
was blowing from the land of the in the lease did not create a lien,
defendant toward the adjoining but was a covenant to do so, and
woodland of the plaintiff, coals one of which a court of equity
were negligently dropped from one would decree a specific perform-
of defendant's engines, which set ance; that if the property had re-
fire to a tie; the fire was commu mained unchanged in defendant's
nicated to an accumulation of possession, plaintiff could have
weeds and grass and rubbish which followed it in equity, and that, as
defendant had suffered to gather these remedies are lost by the
by the side of its track; thence it wrongful act of the defendant,
spread to the fence and on to plaintiff could acquire, claim and
plaintiff's woodland, burning and have a lien upon the avails in place
destroying his growing forest of the property itself; and that,
trees, etc. In an action for the therefore, the complaint contained
damages, -Held, that the questions a sufficient cause of action. Hale
as to whether defendant was negli v. 0. National Bank, 626.
gent in the use of its property, and
as to whether the injury was a 6. Defendant and S. were engaged
probable consequence of the negli in stock speculations through T.,
gent acts and omissions, were pro a broker. The arrangement with
perly submitted to the jury, and T. was made, and the account was
that the evidence was sufficient to

kept, in the name of defendant
sustain a verdict for plaintiff. Id.

alone, S. acting ostensibly as agent.

Plaintiffs made an agreement with
5. The complaint set forth a lease of S. that they might purchase stock

certain hotel property in Omaha, in the name of defendant, and
which lease contained the follow under his arrangment with T.
ing clause: "A lien to be given by Defendant did not know of this
the said lessees to said lessors, to agreement at the time, but was
secure the payment thereof i. e., advised of it soon after, and did
the rent), on all the furniture that not object; he also knew that the
shall be placed in said hotel by stocks purchased for plaintiffs in
said lessees." It then alleged the his name were charged in his
taking possession by the lessees, general account, and the moneys
and their placing in the hotel a advanced by plaintiffs as margins
large amount of furniture, and were credited to him. Subse-
their subsequent abandonment of quently, by agreement between
it, they being utterly insolvent. defendant and the latter as.
It is then alleged that defendant sumed the stock transactions on
took possession of the furniture, joint account, but defendant's
sold the same, and converted the name, with his knowledge, was
proceeds, leaving a large amount still used, and the account kept as
of rent unpaid, in fraud of the before; he also notified T. that
rights of plaintiff (who claimed as the account was under the man-
assignee of the lessor), and who

agement and subject to the direc-
was thus prevented from enforc tion of S. Under plaintiffs' or-

ders, given through S., their stock
was sold, and the balance coming
to them thereon was credited by
T. in defendant's account. The
stocks purchased by defendant and
S. had greatly depreciated, and
this balance was retained by T. as
security thereon. Defendant hav-
ing refused to pay over the bal-
ance upon demand, -Held, that
plaintiffs were entitled to recover
the amount thereof in an action
for money had and received. Jay-
cox v. Cameron.

645.

he sold and delivered the horse to
plaintiff, and refused to deliver it
on defendants' mortgage. After
the mortgage became due defend-
ants took the horse from plaintiff's
possession ; shortly after C. be-
came of age, and then ratified the
bill of sale to plaintiff by indorse-
ment thereon. In an action to
recover possession of the horse,
Held, that defendants were tres.
passers in taking the horse, and
plaintiff was entitled to recover.

Id.

See COMMON CARRIER, 5.

CORPORATIONS, 1.
VENDOR AND VENDEE, 6, 7.
Wetmore v. Candee (Mem.), 667.
Beatson v. Elwell (Mem.), 678.

CHARTER PARTY.

See Beatson v. Elwell (Mem.), 678.

CERTIORARI.

CIRCUIT COURT OF THE

UNITED STATES.
A departure by assessors from

the standard fixed by statute for See REMOVAL OF ACTIONS.
estimating the value of property
placed upon the assessment roil
cannot be corrected upon certio.
rari, nor can their failure to assess

CIVIL WAR
the property of a corporation, as
required, be so corrected. The

See PARTNERSHIP, 1.
court may reverse the assessment
as made, and direct a reassess-
ment; but after the roll has been
delivered to the board of super-

CLAIM AND DELIVERY OF
visors and the power of the as-

PERSONAL PROPERTY.
sessors over it has ceased, a certio-
rari should not be allowed, and, if 1. The chapter of thə Code entitled
allowed, should be quashed even

“Claim and Delivery of Personal
after return made. People ex rel. v.

Property” (chap. 2, title 7, SS 206
Delaney.

655

to 217, inclusive) was intended to
supply the provisional relief there-
tofore obtained in the action of

replevin. It does not change the
CHATTEL MORTGAGE. requisites to maintain the action.

Schofield v. Whitelegge. 259
1. A mortgage of personal property

executed by an infant is voidable 2. The complaint must show a right
at his election at any time before of property and of possession in
he arrives of age and within a plaintiff. An allegation of wrong-
reasonable time thereafter, and is ful detention is not sufficient.
avoided by any act which evinces The latter is a conclusion of law;
that purpose. An unconditional the former, the facts upon which
sale and delivery of the property

it is based. The facts must be
to a third person is such an act. pleaded, and without them the
Chapin v. Shafer.

407 conclusion of law is an immaterial
statement.

Id.
2. One C., an infant, executed a

chattel mortgage upon his horse 3. An omission to allege these facts
to defendants to secure a prior in the complaint is not cured by
indebtedness. Upon the same day an averment in the answer, deny.
APPEAL, 7.
449. PPEADINGS, 1, 5.

ing ownership in the plaintiff.
Where the plaintiff's case depends
upon a wrongful detention with-
out a wrongful taking, an aver-
ment in the complaint of a de-
mand and refusal is necessary. Id.

CODE OF PROCEDURE.

advances, or to pay any indebted-
ness, he may or may not com-
ply with this contract. He may
ship C. or to B. upon conditions,
but if he ships to B. in pursuance
of his contract the title vests in B.
upon the shipment. The highest
evidence that he has so shipped
is the consignment and uncondi-
tional delivery to B. of the bill of
lading; but if A. retains the bill
of lading, and notifies B. by letter
that he has shipped the property
for him in pursuance of the agree-
ment, or if in any other manner
the intent thus to ship is evinced,
the title passes as effectually, as
between them, as if the bill of
lading had been delivered. Bailey
v. H. R. R. R.

70

SS 90, 91, 97. See LIMITATION OF

ACTIONS, 5, 6.
110. See LIMITATION OF ACTIONS, 1.
121. ABATEMENT AND REVI-

VAL, 1.

SERVICE AND PROOF OF, 1.
160.

PLEADINGS, 10.
$8 167, 172. See PLEADINGS, 2.
206-217. See CLAIM AND DELIVERY.
333.

8 135.

COLLECTOR (TAX).

2. Where, therefore, goods are so

shipped, and the carrier receipts
for the same, and agrees to trans-
port safely and deliver to B., the
former is chargeable with know-
ledge of the rights of the latter,
and if by the subsequent direction
of A. he delivers the goods to
another person, he is liable to B.
for a conversion thereof. Id.

See AssESSMENT AND TAXATION, 6.

COMMISSIONERS OF APPEALS.

A commissioner of appeals is not 3. When one who is not in business

a judge of the Court of Appeals, as a common carrier, but who is
and is not prohibited by section 21 the owner of a canal boat used
of article 6 of the State Constitu- generally in the transportation of
tion from acting as referee Settle freight for himself, applies to a
v. Van Eorea.

280 common carrier who has know-

ledge of the facts and receives a
load of freight, such owner is not

subject to liability as a common
COMMISSIONERS.

carrier. The fact that the com-
See ASSESSMENT AMD TAXATION, 9,

mon carrier, as such, contracted

with others for the carriage of the
10, 11, 12
RAILROAD CORPORATIONS, 1, 2.

freight, and that the owner of the
boat was aware of this, does not
affect the liability of the latter.

His liability is determined by the
COMMISSIONS.

business in which he is engaged,

and the character of his own
See BROKERS, 1, 2.

employment, not that of his em.
Shaw 0. HOME LIFE Ins. Co. ployer. Fish v. Cuark, 122
(Mem.), 681.

4. To sustain an action against a

common carrier for a failure to

deliver goods the plaintiff must
COMMON CARRIERS.

be the owner thereof, or have

some special_interest in them.
1. If A. has property upon which Thompson v. Fargo,

188
he has received advances from B.,
under an agreement that he will 5. Prima facie, the consignee is the
ship it to B. to be sold to pay the

If the goods are ordered

owner.

of the consignor by the consignee 8. In an action against a common
stating where, but not how, to carrier, the question as to what is
send them, the consignor has suf reasonable time for a consignee of
ficient title to maintain the action. goods to remove them after notice

Id. of their arrival, where there is no

dispute as to the facts, is a ques-

tion of law for the court. A sub-
6. A common carrier of animals is
not an insurer against injuries re-

mission of the question to the jury
sulting from their nature and pro-

is error, and, in case the jury finds

different from what the law de-
pensities, and which could not be
prevented by foresight, diligence

termines, it is ground for reversal.

223
and care. Where they are trans-

Hedges v. H. R. R. R.
ported under a special agreement; 9. A consignee cannot, after notice
the liability of the carrier is to be
determined by the agreement. He

of the arrival of property for him,
is only liable for the performance

defer taking it away while he at-
tends to his

other affairs. It is his
of the duty undertaken thereby,
or for some wrongful act either

duty, at once, and with diligence,
willful or negligent. Penn. v. B.

to act upon the notice, to seek
and E. R. R. Co.

204

delivery, and continue until de-
livery is complete. So much time

as he gives to his other business,
7. Defendant received from plaintiff

to the neglect of taking charge of
five car-loads of cattle, to be trans-

the property and removing it from
ported from Erie to Buffalo under

the custody of the carrier, cannot
a written agreement, by the terms

be allowed to him in estimating
of which plaintiff assumed all

what is a reasonable time in which
risks of injuries “from delays, or

to take delivery.

Id.
in consequence of heat, suffocation
or the ill effects of being crowded 10. Where, by the contract with
upon the cars;" the agreement a common carrier, he is exempted
provided that plaintiff should load from liability for loss or damage,
and unload the cattle at his own, unless the same be proved to have
risk, the defendant furnishing occurred by fraud or gross negli-
assistance as required; an agent gence of him, his agents or ser-
of the owner was to ride free vants, in an action against such
and to take the care and charge carrier the onus is upon the plain-
of the stock; the cattle were in tiff of proving such fraud or negli-
charge of such agent. At Dun gence. Negligence must not only
kirk the train was detained_by be shown, but it must appear to
a snow storm three days. The have caused, or at least contributed
cattle could have been unloaded to the injury. A defendant in
by constructing a platform; this, such an action has a right to rely
defendant declined to do, and upon his exception to an erroneous
they remained in the cars twenty ruling of the court ás to the burden
four hours, in consequence of of proof, and to decline to intro-
which three of the cattle died duce further evidence, and the
and others were injured. Held, decision will not be sustained upon
that under the contract the duty the ground that the evidence as it
of defendant had respect simply stood showed negligence. Cochran
to the transportation and not to V. Dinsmore.

249
the care of the cattle while in
transitu; that the provision for 11. Defendant received of plaintiff
loading and unloading had refer at Newark a car-load of sheep, to
ence to the terminus of the trans be transported to Albany under a
portation and not to an intermedi contract which contained a clause
ate station, and defendant was not by which plaintiff agreed to go or
required to unload at Dunkirk or send some one with the sheep,
furnish facilities for so doing; “who should take all the risks of
that the injury was attributable to personal injury from whatever
the negligence of plaintiff's agent. cause, whether of negligence of
(PECKHAM, J., dissenting.) Id. defendants, its agents, or other-

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