![[blocks in formation]](https://books.google.com.pe/books/content?id=krgDAAAAYAAJ&output=html_text&pg=PA694&img=1&zoom=3&hl=en&q=chap&cds=1&sig=ACfU3U0dgJ09R-je761aF4R8xLDLs_EyAQ&edge=0&edge=stretch&ci=145,216,392,113)
8. In March, 1873, T., of the firm of
S., T. & Co., doing business at Mem-
phis, drew his draft upon that firm,
payable to the order of J. N. M. &
Son, a Boston firm. The draft was
accepted by the drawees, payable
at Memphis in forty days. The
holder sent the draft to Memphis
for collection. Before it fell due
the drawees notified the payees
that they would not be able to meet
it, and requested permission to
draw for the amount. Permission
was granted by telegram to draw
at sight to pay said draft. S., T.
& Co. thereupon drew upon J. N.
M. & Son a sight draft for the
amount. This draft was discounted
by defendant, and with the assent
of the drawers the proceeds were
placed to their credit, their account
with defendant being at that time
overdrawn to more than the
amount. J. N. M. & Son accepted
the new draft on presentation, and
subsequently paid it. S., T. & Co.
drew a check on defendant to pay
the old draft which it refused to
honor, and refused to pay said draft
when presented. S., T. & Co. soon
after became insolvent.
In an
action to recover the amount of
the new draft it was not alleged
nor was it proved, that a demand
or offer to return the draft was
first made, or that defendant had
any knowledge of the telegram, or
the purpose for which J. N. M. &
Son authorized the drawing of the
new draft. The court directed a
verdict for plaintiff. Held, error;
that neither a cause of action for a
conversion of the draft, nor one to
recover back moneys paid by mis-
take, was established.
9. The complaint alleged that de-
fendant was notified of the purpose
for which the new draft was au-
thorized to be drawn; that it re-
ceived it, agreeing to collect and
apply the proceeds for that pur-
pose, but that it refused so to do.
Held, that the court erred in deny-
ing a motion for a nonsuit, as
plaintiff failed to prove the cause
of action alleged in the complaint.
10. It seems, that had the complaint
been sufficient, and had a proper
demand been made, plaintiff would
not have been entitled to recover.
11. Plaintiffs, in good faith and with-
out notice of any equities, received
from the payee, in exchange for
two promissory notes which they
surrendered absolutely and un-
conditionally, a note made by de-
fendants. In an action thereon,
held, that the plaintiffs were bona
fide holders for value and so that
it was no defense that the note was
executed for the accommodation of
the payee and had been fraudu-
lently diverted from the use in-
tended. Nickerson v. Ruger. 675
Sufficiency of consideration for
promissory note.
See First Nat. Bk. v. Tisdale.
(Mem.)
655
1. The power of the Supreme Court
to order bills of particulars extends
to all descriptions of actions, and
it may be exercised as well in be-
half of the plaintiff as of the de-
fendant. Diright v. Germania L,
Ins. Co.
493
The word "claim" in the provision
of the Code of Civil Procedure
(§ 531) providing that the court
may "in any case direct a bill of
the particulars of the claim of
either party to be delivered to
the adverse party," includes not
merely a ground or cause of ac-
tion upon which some affirmative
relief is asked, but also, in case
of a defendant, whatever is set
up by him, based upon facts al-
leged as the reason why judgment
should not go against him. ld.
3. The said provision does not take
a way the power the court pre-
viously had of affixing a disability
to disobedience of an order direct.
ing a bill of particulars.
1d-
4. In an action upon a policy of life
insurance certain breaches of war-
ranty in answering untruly ques-
tions in an application were set
up as a defense, to wit, that the
insured stated that he had made
no other application for insurance
which had been refused, whereas
he had made such applications to
companies unknown to defendant;
also that he had not had bron-
chitis or spitting of blood, when
in fact he had had both prior to
the application; also that he had
other insurance on his life in ad-
dition to those specified by him.
The court, on motion for a bill of
particulars, directed defendant to
deliver to plaintiff's attorney a
statement of the particular times
and places at which it expected
to prove that the insured had
bronchitis and spitting of blood,
also stating what other insurance
in addition to those specified the
defendant expects or intends to
prove the insured had, specifying
the name of the company and the
date and amount of the policy;
also stating what applications for
insurance were made which had
not led to an assurance, specifying
name of company, time when ap-
plication was made, and date of
application. The order also pro-
Ivided that defendant should be
precluded from giving evidence
on the trial of matter not speci-
fied in such bill of particulars
The General Term modified the
order so as to allow defendant to
give in evidence general admis-
sions and declarations of the in-
sured without regard to the bill of
particulars. Held, that the court
had power to grant such an order;
and that the granting of it in this
case was not such an abuse of dis-
cretion as to authorize a review of
it in this court.
5. The affidavits upon which the
motion was made stated that
plaintiffs do not know to what in-
stances the said averments of the
answer refer, but did not state
that they do not know of some
instances of the kind referred to.
It was claimed that these allega-
tions were not sufficient to
thorize the court to entertain the
motion. Held, untenable; that the
affidavits made a case for the ex-
ercise of the discretion of the
ld.
court.
1. Plaintiffs contracted to sell to A. a
quantity of corn to be paid for in
cash on delivery. At the request
of A. plaintiffs caused a portion of
the corn to be loaded on board a
vessel, for their account, and re-
ceived the weigher's return, which
they indorsed and delivered to A.,
to enable him to procure bills of
lading in his own name and to sell
his exchange drawn against the
same, it being agreed that the title
of the corn should not pass until
payment, which was to be made
on that day. A. procured the bills
of, lading, which he transferred to
defendants as security for three
bills of exchange drawn against
the corn, forming part of a parcel
of exchange sold to defendants by
A. Defendants paid to A. a portion
of the proceeds of the exchange so
purchased, and forwarded the three
bills with the bills of lading to their
correspondents. On the same day
plaintiffs notified defendants that
they were the owners of the corn,
and demanded the same or the bills
of lading, or that defendants should
agree to account to them for the
proceeds; defendants refused. At
that time they had in their hands
of the purchase-price of the ex-
change more than the value of the
In an action for the conver-
sion of the corn, the defense was
that defendants bought and paid
for the corn in good faith without
notice; held, that no title to the
corn passed from plaintiffs to A.;
that the condition precedent of pay-
ment was not waived by the sym-
bolical delivery; that as defendants,
at the time of plaintiffs' demand,
had sufficient means in their hands
to protect both themselves and
plaintiffs from loss, their refusal to
comply was without justification;
that they were to be regarded as
holding the proceeds in place of the
property, and were liable to pay it
over to plaintiffs as the rightful
owners; and that, by payment of a
portion of the purchase money be-
fore notice of plaintiffs' claim, de-
fendants were entitled to protection
as bona fide purchasers, only to the
extent of such payment. Dows v.
Kidder.
121
2. Where a bill of exchange is paid
to one who holds it in good faith,
and for value, he cannot be called
upon to account for the money
paid, upon proof, that in transac
tions between the drawer
and
drawee, of which he had no knowl
edge, or means of knowledge, there
has been some fraud or mistake to
the injury of the drawee; and this,
although the holder, not having
parted with value at the time when
he took the draft, could not have
enforced it against the drawee,
even after acceptance. Southwick
v. First National Bk.
holders for value, and so that it
was no defense that the note was
executed for the accommodation of
the payee, and had been fraudu-
lently diverted from the use in-
tended. Nickerson v. Ruger. 675
Rights of parties holding bonds
of railroad corporation on foreclosure
of mortgage securing the bonds.
See Duncomb v. Ñ. Y. II. & N. R.
R. Co.
90
See TOWN BONDING
1. Plaintiffs having title to land
bounded by the waters of a bay at
ordinary high-water mark made an
allotment under which defendant
claimed, bounded westerly by "the
cliff." At the the time of the al-
lotment there was a strip of land
between the cliff and high-water
mark. In an action of ejectment,
held, that this strip was not em-
braced in the allotment; but
that the boundary by the cliff was
not a shifting one so as to entitle
plaintiffs to make reprisals out of
the allotted lands for land lost by
the advance of the sea; and that,
as between them and the grantees,
the site of the cliff at the time of
the allotment continued to be the
western boundary, and if the strip
then intervening between it and
high-water mark and a portion of
the cliff had subsequently been
worn away by the action of the sea,
so that the present high-water
mark was within the boundaries of
the allotted land, plaintiffs had no
title. Trustees, etc., East Hamp-
ton v. Kirk.
215
What competent evidence in ac-
ion against, for negligence.
See Hart v. H. R. Bridge Co. 56
1. An action for an accounting and
partition and other relief is not en-
Wetmore v. White (2 Cai. Cas. 87), Selma R. & D. R. R. Co. v. Lacy
distinguished. Wiseman v. Luck-
singer.
Brown v. Bowen (30 N. Y. 541), dis-
tinguished. Wiseman v. Luck-
singer.
39
Rindge v. Baker (57 N. Y. (209), dis-
tinguished. Wiseman V.
Luck-
singer.
39
(43 Ga. 461), distinguished. Leon-
ard v. Columbia St. Nav. Co. 55
Marcy v Marcy (32 Conn. 308), dis-
tinguished. Leonard v. Columbia
St. Nav. Co.
55
McCosker v. L. I. R. R. Co. (21 Hun,
500), reversed. McCosker v. L. I.
R. R. Co.
Pierrepont v. Barnard (6 N. Y. 304), Boone v. Citizens'
distinguished. Wiseman v. Luck-
Svgs. Bk. (21 Hun,
Boone v. Citizens'
83
People ex rel. Higgins v. McAdam
(22 Hun, 559), reversed. People
ex rel. Higgins v. McAdam. 287
Walton v. Walton (1 Keyes, 18, 2
Abb. Pr. [N. S.] 428), distin-
guished. McCabe v. Fowler. 320
Ireland v. Ireland (18 Hun, 362), re-
versed. Ireland v. Ireland. 321
Riggs v. Am. Tract Soc. (19 Hun,
481), reversed. Riggs v. Am. Tract
Soc.
330
Ormiston v. Olcott (22 Hun, 270), re-
versed. Ormiston v. Olcott. 339
Waters v. Riley (1 Harr. & Gill. 305),
disapproved. Johnson v. Harvey.
365
Tobias v. Rogers (13 N. Y. 66), dis-
tinguished. Johnson v. Harvey.
366
Adams v. Davidson (10 N. Y. 309),
distinguished. Coyne v. Weaver.
393
Southwick v. First Nat. Bk. of Mem-
phis (20 Hun, 349), reversed.
Southwick v. First Nat. Bk. of Mem-
phis.
Stafford v. Strofford (1 DeG. & J. 193), Comstock v. Hier (73 N. Y. 269), dis-
distinguished. Boardman v. L.
S. & M. S. R. Co.
184
tinguished. Southwick v. First
Nat. Bk. of Memphis.
433
First Nat. Bk. of Meadville v. Fourth
Nat. Bk. of N. Y. (22 Hun, 563),
reversed. First Nat. Bk. of Mead-
ville v. Fourth Nat. Bk. of N. Y. 469
|