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
4. At a time of continued and ex- treme drouth, while a strong wind was blowing from the land of the defendant toward the adjoining woodland of the plaintiff, coals were negligently dropped from one of defendant's engines, which set fire to a tie; the fire was commu- nicated to an accumulation of weeds and grass and rubbish which defendant had suffered to gather by the side of its track; thence it spread to the fence and on to plaintiff's woodland, burning and destroying his growing forest trees, etc. In an action for the damages,-Held, that the questions as to whether defendant was negli- gent in the use of its property, and as to whether the injury was a probable consequence of the negli- gent acts and omissions, were pro- perly submitted to the jury, and that the evidence was sufficient to sustain a verdict for plaintiff. Id.
5. The complaint set forth a lease of certain hotel property in Omaha, which lease contained the follow- ing clause: "A lien to be given by the said lessees to said lessors, to secure the payment thereof (i. e., the rent), on all the furniture that shall be placed in said hotel by said lessees." It then alleged the taking possession by the lessees, and their placing in the hotel a large amount of furniture, and their subsequent abandonment of it, they being utterly insolvent. It is then alleged that defendant took possession of the furniture, sold the same, and converted the proceeds, leaving a large amount of rent unpaid, in fraud of the rights of plaintiff (who claimed as assignee of the lessor), and who was thus prevented from enforc-
ing his lien thereon. The com- plaint further alleged that defend- ant had in its possession the avails of the sale of said furniture, which justly belonged to plaintiff by vir- / tue of the alleged lien, and wrong- fully withheld the same from the plaintiff, to his great damage, etc. Upon demurrer,-Held (ALLEN, J., FOLGER and RAPALLO, JJ., con- curring), that it was immaterial whether plaintiff's right was based upon a legal title to the property, or upon an equity entitling him, as against defendant, to pursue the avails thereof; that the clause in the lease did not create a lien, but was a covenant to do so, and one of which a court of equity would decree a specific perform- ance; that if the property had re- mained unchanged in defendant's possession, plaintiff could have followed it in equity, and that, as these remedies are lost by the wrongful act of the defendant, plaintiff could acquire, claim and have a lien upon the avails in place of the property itself; and that, therefore, the complaint contained a sufficient cause of action. Hale v. O. National Bank, 626.
6. Defendant and S. were engaged in stock speculations through T., a broker. The arrangement with T. was made, and the account was kept, in the name of defendant alone, S. acting ostensibly as agent. Plaintiffs made an agreement with S. that they might purchase stock in the name of defendant, and under his arrangment with T. Defendant did not know of this agreement at the time, but was advised of it soon after, and did not object; he also knew that the stocks purchased for plaintiffs in his name were charged in his general account, and the moneys advanced by plaintiffs as margins were credited to him. Subse- quently, by agreement between defendant and S., the latter as- sumed the stock transactions on joint account, but defendant's name, with his knowledge, was still used, and the account kept as before; he also notified T. that the account was under the man- agement and subject to the direc- tion of S. Under plaintiffs' or-
A departure by assessors the standard fixed by statute for estimating the value of property placed upon the assessment roll cannot be corrected upon certio- rari, nor can their failure to assess the property of a corporation, as required, be so corrected. The court may reverse the assessment as made, and direct a reassess- ment; but after the roll has been delivered to the board of super- visors and the power of the as- sessors over it has ceased, a certio- rari should not be allowed, and, if allowed, should be quashed even after return made. People ex rel. v. Delaney. 655
1. A mortgage of personal property executed by an infant is voidable at his election at any time before he arrives of age and within a reasonable time thereafter, and is avoided by any act which evinces that purpose. An unconditional sale and delivery of the property to a third person is such an act. Chapin v. Shafer. 407
2. One C., an infant, executed a chattel mortgage upon his horse to defendants to secure a prior indebtedness. Upon the same day
CIRCUIT COURT OF THE UNITED STATES.
CLAIM AND DELIVERY OF PERSONAL PROPERTY.
1. The chapter of the Code entitled
"Claim and Delivery of Personal Property" (chap. 2, title 7, §§ 206 to 217, inclusive) was intended to supply the provisional relief there- tofore obtained in the action of replevin. It does not change the requisites to maintain the action. Schofield v. Whitelegge. 259
The complaint must show a right of property and of possession in plaintiff. An allegation of wrong- ful detention is not sufficient. The latter is a conclusion of law; the former, the facts upon which it is based. The facts must be pleaded, and without them the conclusion of law is an immaterial statement.
3. An omission to allege these facts
in the complaint is not cured by an averment in the answer, deny-
advances, or to pay any indebted- ness, he may or may not com- ply with this contract. He may ship to 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
3. When one who is not in business as a common carrier, but who is the owner of a canal boat used generally in the transportation of freight for himself, applies to a 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 carrier. The fact that the com- mon carrier, as such, contracted with others for the carriage of the 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 business in which he is engaged, and the character of his own employment, not that of his em- ployer. Fish v. Clark. 122
of the consignor by the consignee | 8. stating where, but not how, to send them, the consignor has suf- ficient title to maintain the action.
6. A common carrier of animals is not an insurer against injuries re- sulting from their nature and pro- pensities, and which could not be prevented by foresight, diligence and care. Where they are trans- ported under a special agreement, 9. the liability of the carrier is to be determined by the agreement. He is only liable for the performance of the duty undertaken thereby, or for some wrongful act either willful or negligent. Penn. v. B.. and E. R. R. Co. 204
7. Defendant received from plaintiff five car-loads of cattle, to be trans- ported from Erie to Buffalo under a written agreement, by the terms of which plaintiff assumed all risks of injuries "from delays, or in consequence of heat, suffocation or the ill effects of being crowded upon the cars;" the agreement provided that plaintiff should load and unload the cattle at his own, risk, the defendant furnishing assistance as required; an agent of the owner was to ride free and to take the care and charge of the stock; the cattle were in charge of such agent. At Dun- kirk the train was detained_by a snow storm three days. The cattle could have been unloaded by constructing a platform; this, defendant declined to do, and they remained in the cars twenty- four hours, in consequence of which three of the cattle died and others were injured. Held, that under the contract the duty of defendant had respect simply to the transportation and not to the care of the cattle while in transitu; that the provision for loading and unloading had refer- ence to the terminus of the trans- portation and not to an intermedi- ate station, and defendant was not required to unload at Dunkirk or furnish facilities for so doing; that the injury was attributable to the negligence of plaintiff's agent. (PECKHAM, J., dissenting.)
In an action against a common carrier, the question as to what is reasonable time for a consignee of goods to remove them after notice of their arrival, where there is no dispute as to the facts, is a ques- tion of law for the court. A sub- mission of the question to the jury is error, and, in case the jury finds different from what the law de- termines, it is ground for reversal. 223 Hedges v. H. R. R. R.
A consignee cannot, after notice of the arrival of property for him, defer taking it away while he at- tends to his other affairs. It is his duty, at once, and with diligence, to act upon the notice, to seek delivery, and continue until de- livery is complete. So much time as he gives to his other business, to the neglect of taking charge of the property and removing it from the custody of the carrier, cannot be allowed to him in estimating what is a reasonable time in which to take delivery.
10. Where, by the contract with a common carrier, he is exempted from liability for loss or damage, unless the same be proved to have occurred by fraud or gross negli- gence of him, his agents or ser- vants, in an action against such carrier the onus is upon the plain- tiff of proving such fraud or negli- gence. Negligence must not only be shown, but it must appear to have caused, or at least contributed to the injury. A defendant in such an action has a right to rely upon his exception to an erroneous ruling of the court as to the burden of proof, and to decline to intro- duce further evidence, and the decision will not be sustained upon the ground that the evidence as it stood showed negligence. Cochran v. Dinsmore. 249
11. Defendant received of plaintiff
at Newark a car-load of sheep, to be transported to Albany under a contract which contained a clause by which plaintiff agreed to go or send some one with the sheep, "who should take all the risks of personal injury from whatever cause, whether of negligence of defendants, its agents, or other-
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