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tion, from the printer's name. It was probably published for the use of the authorities in England.*

It not unfrequently happens that the courts and the legal profession have need to consult the statutory law of the Province of New York, and it is a subject of regret that the various editions (though much more beautifully printed than the State session laws) are of so incomplete and untrustworthy a character. Mr. George H. Moore, the accomplished superintendent of the Lenox Library, who has given the subject the most valuable attention, estimates that of nearly two thousand statutes enacted between 1691 and 1775, not onethird have been printed in the various collected and revised editions-all of which are long since out of print.

A republication of the provincial laws of New York is unquestionably desirable, not only for the use of the legal profession but for the benefit of the public authorities and the historical student. If such an undertaking be too long delayed, it may be wholly prevented by the destruction of either the private repositories or the charter rooms of the public archives, containing the necessary but scattered materials. Yet those who are familiar with the Kent and Radcliffe, and the Van Ness and Woodworth revisions of the State laws, must appreciate the important relations which the provincial laws bear to our present statute law, and to the actual and contemplated statutory codification. Such provincial laws are the very foundation stone of our juridical superstructure. An intelligently annotated revision of these laws would of itself complete the legal history of the State. Massachusetts has bestowed on her early statutes much more attention than New York; yet the early laws of New York are quite as interesting and important.

The question, how far the laws of the Province which were enacted before the year 1691, remained in force after that year, has been the subject of judicial inquiry at a comparatively recent date. Doubts on the subject were occasioned by the statements of the early historian, Smith, "that those acts which were made in 1683 and after the Duke's accession to the throne, when the people were admitted to a participation of the legislative power, are for the most part rotten, defaced or lost; and that all laws antecedent to the Assembly of 1691, were disregarded both by the Legislature and the court." (Smith's Hist'y N. Y., Lond. ed., 1757, p. 73; 2 Graham's Hist'y of U. S., p. 255.)

The lower house of the provincial Assembly, on the 24th of April, 1691, resolved, that all the laws consented to by the General Assembly under James, Duke of York, and the liberties and privileges therein contained, granted to the people and declared to be their rights, not being observed and not ratified and approved by his Royal Highness, are null and void and of none effect; and also, the several ordinances made by the late governor and council, being contrary to the Constitutions of England and the practice of the government of their majesties other plantations in America, are null, void and of none effect or force within this Province. (1 Assembly Jour. 1, 8, 9.) This resolution never ripened into a law. It is said to have been simply declaratory of the existing rule on the subject, and, in reality, not to have had the effect of abrogating any of the valid enactments of a date prior to 1691. (Van Winkle v. Constantine, 10 N. Y. 428; Humbert v. Trinity Church, 24 Wend. 625. See, also, Jackson v. Gilchrist, 15 Johns. 112.) A close examination of the resolution in question shows that it only

* Attention was called to this edition by Mr. Winters, the assistant librarian of the New York Law Institute, who has Inade the session laws of the different States a special study, to the great benefit of his library. The N. Y. Hist. Society possess a copy of the Baskett edition.

declared that those laws not ratified or confirmed by the proprietary were void, but this was a mere repetition of the Duke's instructions. (3 Col. Doc. 332.) The laws of the proprietary which were approved by the lord proprietor were not impugned by the resolution; and, therefore, clearly those laws not rejected by him remained operative as before the resolution. Indeed, Mr. Smith himself, later on in his history, states that in 1741, when Mr. Horsmanden was directed by the Assembly to compile the laws, it was discovered that several acts passed prior to 1691 were still in force, and an act was then proposed to repeal all such, but it was not passed. (2 Smith's Hist'y N. Y., p. 66.) Mr. Butler has stated the reasons which, in his opinion, probably prompted the resolution of the lower house. (Butler's Const. Hist'y, 41.) Judge Hoffman thought one of the acts of the Assembly of 1683, founding the Court of Chancery, to be in force as late as the year 1834. (1 Hoffman's Ch. Pr. 15-18.) In so far as this resolution under consideration concerned the ordinances of the governors and council prior to 1691, it was also declaratory of the rule of law, that such ordinances must not be contrary to the Constitution of England, by which was meant the common law; it could not affect those ordinances which were valid at common law. (Op. Atty.-Gen. Kemp. Kemp papers MS. N. Y. Hist. So. Col.) The reason why the provincial revisors were directed to begin with the acts of the Assembly first held after the Revolution of 1688, undoubtedly was that most of the laws of the proprietary were not in print, so that they were little known even in the eighteenth century. (24 Wend. 625.) But the omission of the revisors does not affect the validity of the earlier laws.

One of the first acts of the Assembly of 1691 was that, "declaring what are the rights and privileges of their majesties subjects inhabiting within their Province of New York." The purpose of this act was similar to that of the "Charter of Libertys," disallowed by King James II., (Vol. 21, Alb. L. J., p. 268.) -a limitation of the prerogative and an additional guaranty of political rights. The act of 1691 suffered the fate of its prototype, being repealed in the year 1697, and thus the inhabitants were remitted to their original status as English subjects, resident in a royal Province of the Crown.

The commission to Colonel Sloughter, as has been before [stated, formally granted the rights of the inhabitants of New York to a representative Assembly - a right of which they could not afterward be lawfully deprived. (Chitty's Prerog. 33.) This particular commission is important, as it was a distinct recognition by the new sovereigns of the bicameral legislative system, or the principle of two legislative houses. Thus, this essentially Anglican institutiondeveloped in England, and like the common law accompanying the Anglican race in all its migrationswas permanently established in New York to continue with but minor modifications until the present time. Our juridical plan is not the only debt that we owe to the progress of the common law, for the very theory and practice of a bicameral Legislature, is itself a common-law development.

The commission to Governor Sloughter also empowered him, with the advice and consent of the council, to erect and establish courts of judicature for the trial of all causes, legal and equitable, civil and criminal. This clause relates to a species of prerogativo legislation which has by tradition been vested in the Crown, independent of the Legislature. The right of the Crown to erect courts of law without the concurrent action of Parliament seems to have been admitted in England. Whether such power extended to courts of equity has been questioned and denied, but in the colonies this prerogative clearly extended to the establishment of courts both of law and equity. (Chalmers'

Col. Op., p. 194.) In the colonies, however, the Crown rarely claimed the exclusive right; and at times the colonial and provincial Legislatures seem to have been allowed a share in the establishment of the judicatories, while at others, when the Crown asserted its prerogative, they were excluded.

quit-rents-always greatly in arrears. (Lond. Doc. xxiv, 880.)

The proceedings of the Court of Chancery in New York were, doubtless, somewhat intermittent; Blake (Int'd to Ch. Pr.), and Johnson, (Int'd to Johns. Ch. Rep.) have thought that this tribunal transacted but little business prior to the Revolution of 1775-6, but it is more than probable that the opinion of these gentlemen was founded on the statement of the historian Smith, "that the wheels of chancery have ever since (1727) rusted upon their axis"-"the practice being contemned by all gentlemen of eminence in their profession." (1 Smith's N. Y. 280.) It must be remembered, in this connection, that Mr. Smith, though liv

The permanent judicial establishment of the Province of New York owed its origin to the Assembly of 1691. A Supreme Court of judicature, possessing the jurisdiction of the English Courts of King's Bench, Common Pleas and Exchequer, was then created. (Bradford, 1694 ed., N. Y. Laws, p. 2.) This tribunal was, in the main, a court of law, possessing jurisdiction of causes involving upward of twenty pounds, and also an extended supervisory and appellate juris-ing at the time of which he wrote, was far from an diction over the inferior judicatories. In the year 1733 it was asserted, that it had likewise the equity jurisdiction of the court of equity in the Exchequer Chamber; and this pretension was decided in the affirmative. The Judiciary Act of 1691 was continued by an act of Assembly, passed November 9th or 11th, 1692 (Bradford's ed., N. Y. Laws, 1694, p. 64); and the latter was again renewed in October, 1695, for two years. In 1697 this act was finally extended for one year; but, on its expiration, differences having arisen between the Assembly and the governor, it was allowed to expire by limitation. Finally Lord Bellomont, as the royal governor of the Province, in 1699, resorted to the prerogative and continued the courts by an ordinance, in which the Assembly had no part. (Appendix No. v., 2 R. L. 1813.) This ordinance was confirmed by Lord Cornbury in 1704. (Appendix No. vi, 2 R. L. 1813.) On this footing, the Supreme Court continued down to tho establishment of the State government, when it was further continued as part of the existing order of things.

The Court of Chancery of the Province, originally erected by the act of 1683, was remodelled by the "Act for establishing courts of judicature," passed in 1691. This act, continued from time to time, as described in the preceding paragraph, finally expired. On the 28th of August, 1701, an ordinance was issued reestablish ing the chancery and authorizing the governor and council, or any three of them, to hold the court. In June, 1702, its operations were suspended until a fee bill should be settled, and it was not again revived until the 7th day of November, 1704, when it was directed to proceed. (2 R. L. 1813, Appendix vii.) At various times the lower house of Assembly protested against the establishment of a court of equity by the governor without their concurrence; but notwithstanding this fact the Court of Chancery, until the year 1711, continued to be held by the governor and council, by virtue of the ordinance mentioned. Subsequent to the year 1711, the governor alone sat as chancellor. (Council Min.)

The very early establishment of a Chancery Court in New York was one of several causes contributing to the relative preeminence of its particular jurisprudence. In many of the American colonies equity jurisprudence had, prior to the War of Independence, no distinct existence in any large and appropriate sense. In the Province of New York there was, however, a tendency to more closely conform to English precedents. (2 Smith's Hist'y N. Y. 320.) Matters of equity, as distinct from cases cognizable at law, were recognized by the "Duke's Lawes" of 1665, while a Court of Chancery was eo nomine established by the act of 1683. It must be conceded, that there was a strong popular prejudice against the discretionary power of the chancellor, which was thought to be bounded by no very defined limit, and to conceal the undefined prerogative with which colonial principles were ever at war. But it has been said that the true grounds of the hostility of the people of New York to the equity courts was their jurisdiction of the king's

impartial witness. His father had been engaged professionally in the hostile attack on the court of equity in Governor Cosby's administration, and had thus become a leader of the popular party. The historian Smith followed the political bias of his father, though at the beginning of the Revolution he abandoned the popular party and became a judge under the Crown, in Canada. The late Judge Hoffman, who, years afterward, gave the subject the closest attention, seems to have had a very different estimate of the volume of chancery business in the Province, as well as of comparative importance. (Hoffman's Ch. Pr. pp. 11-14.) Doubtless the Albany records of the Provincial Court of Chancery confirm the latter's view.

The early establishment of a Court of Chancery in New York was, in several aspects, important; it contributed to its jurisprudence the symmetry which that of many of the other colonies lacked, and it finally led to the constitutional recognition of the office of chancellor, possessing almost the powers of the lord chancellor in England. (Camp. & Cambreling's Ch. Dig., p. xi, Pref.) It is now difficult to estimate the influence exercised for over half a century by the chancellors of the State of New York, not only within their own proper sphere, but as well in the formation of equity jurisprudence in its American phase. Without the chancery reports of this State, it is needless to say that the New York contributions to practical administrative jurisprudence would be greatly diminished in value. True it is, that Justice Story has said that equity was scarcely felt in New York until about the time of Caine's and Johnson's reports (§ 56, Story's Eq. Jur.) But it is not strange that the influence of equity jurisprudence was greatly augmented by the efforts of the reporters. That their influence was at once so extensive depended, however, on the highly developed condition of the equity administration at the time the reports began in New York. Taking into consideration the fact, that equity jurisprudence was greatly neglected in many of the Anglo-American colonies, and that until Lord Hardwick's time the administration of equity, even in England, presented many uncertainties, it is a remarkable fact that the ameliorating tendency of equity was recognized in New York in the very beginning of its political life. It must be considered a very fortunate circumstance that it was so recognized, for when the equity powers of the chancery were distributed under the Constitution of 1846, throughout the courts of record of New York, a well-understood jurisdiction was thus engrafted on the law courts and the process of assimilation was rendered more facile and certain. One of the first duties of the English authorities, after the conquest, was to make suitable provision for the probate of wills and tho administration of estates. (The Duke's Lawes, Tit. Administration.) The clerks of the courts of session which had cognizance of probate in the English parts of the Province were directed to certify the names of the decedents and their executors or administrators, with their security, to the recorder's office at New York city. This led to the establishment of a prerogative court (Bradford's ed.

N. Y. Laws, ed. 1694, p. 72), from which letters testamentary and of administration issued under its peculiar seal. The delegates appointed to take charge of the estates of intestates, in the distant counties, pursuant to the act of 1692 finally took the name of surrogates, which then signified deputies of the prerogative court. This name is now retained in our probate courts, although the surrogate has become chief judge of the probate court. In the year 1754 a judge of probate was appointed; he shared with the prerogative office,the duties of ordinary and surrogategeneral. There was very little that was either original or peculiar in the courts appointed for the cognizance of wills and administration.

The judicial organization of the Province may be regarded as having been established by the Judicature Act of 1691 (Bradford's N. Y. Laws, ed. 1694), and the jurisdiction and tribunals established by it, have remained essentially the same to the present day. This act defined the courts of justices of the peace, the courts of sessions of the peace, the county courts of Common Pleas, the mayor's courts of cities, the Supreme Court and the Court of Chancery. It also regulated the Provincial Court of Appeals, which was almost identical with the old Court of Errors, if not its progenitor. From the provincial Court of Appeals, appeals lay to the King in council.

It may be proper, in a survey of the judicial organization of the Province, to refer to the Court of Admiralty established for New York, although it possessed but a limited jurisdiction within the Province. Under the Duke of York, special commissions, issued for the determination of admiralty causes, but in 1678 a regular court was established under the governor's commission. In the year 1699 the lords of trade recommended that the chief justice of the Supreme Court of New York be empowered to act as judge in admiralty. Accordingly William Smith, then chief justice, was made admiralty judge, and fulfilled the duties of that station from 1699 to 1702. Ultimately a vice-admiralty court was established by commissions issuing from the High Court of Admiralty in England. Appeals from the Vice Admiralty Courts for some time lay to the Court of Admiralty in England, but shortly before the American Revolution a superior court of admiralty was established in North America, and thenceforth all appeals from the vice-admiralty were directed to be made to it.

Jurisdictions have since been shifted and interchanged; and yet, after all, but few novelties have been engrafted on the ancient foundations.

JURISDICTION OF STATE COURTS AS TO OFFENSES BY NATIONAL BANK

OFFICERS.

PENNSYLVANIA SUPREME COURT, JANUARY 19, 1880.

COMMONWEALTH EX REL. TORREY V. KETNER.

A Pennsylvania State court has not jurisdiction to try an indictment against the cashier of a National bank for embezzling the funds of tho bank, such embezzlement not being a common-law offense or one against tho statutes of Pennsylvania.

PPLICATION by habeas corpus for the release of

William Torrey, the relator, who was held upon a charge of embezzling, abstracting and misapplying the funds, moneys and assets of the First National Bank of Ashland, in Schuylkill county; a bank duly incorporated, organized and established under the laws of the United States, commonly known as the National Banking Act.

The prosecution, which was commenced before a justice of the peace, was returned to the quarter sessions of Schuylkill county, aud in that court a true

bill was found, and the indictment and record show upon the face of the proceedings that the offense charged was for embezzling, abstracting and misapplying the funds of the First National Bank of Ashland, created under the National Banking Act.

Relator was arrested and lodged in the county prison, then took out this writ of habeas corpus, and in obedience to its command, Ketner, the warden of the prison, produced the body, and made return that he held the prisoner by virtue of above-named proceedings.

By virtue of article V, section 3, of the Constitution of 1874, the Supreme Court of Pennsylvania, in cases of habeas corpus, has original jurisdiction.

William A. Marr, James Ryon, William B. Mann and John W. Ryon, for relators. The State court has no jurisdiction, embezzlement not being a commonlaw offense. 2 Russell on Crimes, 163; 4 Bl. Com. 230; United States v. Clew, 4 Wash. C. C. Rep. 700. Congress has power to give the Federal courts exclusive jurisdiction. Houston v. Moore, 5 Wheat. 1--24; 1 Kent's Com. 398; Curtis' Com. 176; Claflin v. Houseman, 3 Otto, 141. Where an act of Congress creating a corporation provides a punishment to be inflicted upon any officer of the corporation who embezzles its property, it is not competent for the State Legislature to make the same act an offense against the laws of the State. Commonwealth v. Fuller, 8 Metc. (Mass.) 313; Commonwealth v. Felton, 101 Mass. 204; Commonwealth v. Barry, 116 id. 1; State v. Tuller, 34 Conn. 280. By section 711 of the Judiciary Act of 1789 (U. S. R. S. 134), the jurisdiction vested in the United States courts is exclusive of the State courts. Section 5209, et seq., of the National Banking Act provides for punishing embezzlement by officers.

A. W. Schalck, district attorney, and Hughes & Farquhar, for respondent. Jurisdiction of State courts has been sustained in Buckwalter v. United States, 11 Serg. & R. 196; White v. Commonwealth, 4 Binn. 418; Commonwealth v. Shaeffer, 4 Dall. 27; United States v. Hutchinson, 4 Clark, 211; Jett v. Commonwealth of Virginia, 7 Am. Law Reg. (N. S.) 265; Claflin v. Iouseman, 3 Otto, 130; Coleman v. State of Tennessee, 7 id. 509, especially the dissenting opinion of Clifford, J., not differing in this respect from the majority of the court.

PAXSON, J. It appears by the return to this writ that the relator is held to answer an indictment in the court of quarter sessions of Schuylkill county, charging him, as cashier of the First National Bank of Ashland, with having embezzled the funds and property of said bank. There are three counts in the indictment, each varying the form of the charge, but not essentially changing its substance.

It is almost needless to say that a habeas corpus is not a writ of error. Hence, if the court below had jurisdiction of the offense, we cannot correct its rulings in this proceeding, however erroneous they may be. On the other hand, it is equally clear that if the relator is being prosecuted for a matter which is not an indictable offense by the law of Pennsylvania, or one over which the court below has no jurisdiction, it would be our right, as well as our plain duty, to discharge him. No authority is needed for so obvious a proposition.

Embezzlement by the cashier of a bank is not a common-law offense. This indictment must rest upon some statute of this State or it cannot be sustained. Has it such support? As preliminary to this question, it is proper to say that section 5209 of the United States statutes provides specifically for the punishment of cashiers and other officers of National banks who shall be guilty of embezzling the moneys, funds or credits of such institutions. The relator was not indicted under this section, and could not have been in a State court. Our own legislation upon this subject

may be briefly stated. We have first the Crimes Act of 1860 (P. L. 382), the 116th section of which prescribes and punishes the offense of embezzlement by any person "being an officer, director, or member of any bank, or other body corporate or public company." Then we have the act of May 1, 1861 (P. L. 515), entitled "A supplement to an act to establish a system of free banking in Pennsylvania, and to secure the public against loss from insolvent banks, approved 31st March, 1860," which also prescribes and punishes embezzlement by bank officers. Lastly, there is the act of 12th of June, 1878 (P. L. 196), which amends the aforesaid 116th section of the act of 1860, by substituting a new section in its place, and imposing a different punishment. This leaves the acts of 1861 and 1878 as the only ones which could possibly support the indictment. It was urged, however, and with much force, that the act of 1861 was only intended to apply to banks organized under the free banking law, of which it forms a part; and that as to the act of 1878, the offense charged in the indictment was committed prior to its passage. This fact was formally conceded upon the argument, and while we might not be able for such reason to grant relief upon habeas corpus, it furnishes a conclusive reason why, upon a trial in the court below, the Commonwealth could derive no aid from the act of

1878.

ciously, willfully and fraudulently making false entries in the books, reports and statements of the said bank. James Ryon, for plaintiff in error.

A. W. Schalck, district attorney, Geo. R. Kaercher and Lin Bartholomew, for defendant in error.

PAXSON, J. The second assignment denies the jurisdiction. The plaintiff in error was convicted upon an indictment charging him as receiving teller of the First National Bank of Mahanoy City, with fraudulently making false entries in the books, reports, and statements of said bank, with intent to injure and defraud the said bank, and we are asked to reverse the judgment upon the ground that the offense charged having been committed by an officer of a National bank, it is not the subject of an indictment in a State court. Commonwealth ex rel. Torrey v. Ketner, reported above, was relied upon to sustain this position. Torrey was indicted as cashier of a National bank with embezzling the funds of the bank, and was discharged upon habeas corpus, for the reason that the offense was not indictable at common law, and our statutes defining and punishing the offense do not apply to National banks. Here the indictment charges an offense which was a crime at common law. In Commonwealth v. Beamish, 31 P. F. S. 339, it was decided that the fraudulent alteration of a book, known as a tax duplicate, was

for forgery. The indictment here is laid under the statute, and does not charge the offense of forgery in the technical manner required by the strict rules of the common law, but, as in Commonwealth v. Beamish, is good under our Criminal Procedure Act. That the act of Assembly does not call it forgery makes no difference. It is the same offense.

We are spared further comment upon these acts for forgery at common law. It is plain, under this authorthe reason that they have no application to Nationality, that the plaintiff in error could have been indicted banks. Neither of them refers to National banks in terms, and we must presume that when the Legislature used the words "any bank," that it referred to banks created under and by virtue of the laws of Pennsylvania. The National banks are the creatures of another sovereignty. They were created and are now regulated by the acts of Congress. When our acts of 1860 and 1861 were passed there were no National banks, nor even a law to authorize their creation. When the act of 1878 was passed, Congress had already defined and punished the offense of embezzlement by the officers of such banks. There was therefore no reason why the State, even if it had the power, should legislate upon the subject. Such legislation could only produce uncertainty and confusion, as well as a conflict of jurisdiction. In addition, there would be the possible danger of subjecting an offender to double punishment, an enormity which no court would permit if it had the power to prevent it.

An act of Assembly, prescribing the mauner in which the business of all banks shall be conducted, or limiting the number of directors thereof, could not by implication be extended to National banks, for the reason that the affairs of such banks are exclusively under the control of Congress. Much less can we, by mere implication, extend penal statutes, like those of 1861 and 1878, to such institutions.

The offense for which the relator is held is not indictable either at common law or under the statutes of Pennsylvania. We therefore order him to be discharged.

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The first assignment alleges error in another case, in which the plaintiff in error was convicted and sentenced. We cannot, upon this writ of error, reverse a judgment in another case though against the same party. Nor is it material, as the record shows the plaintiff has served out the term of imprisonment imposed by the court.

Judgment affirmed.

MORTGAGE OF SUBSEQUENTLY ACQUIRED
PERSONAL PROPERTY.

ENGLISH HIGH COURT OF JUSTICE, COMMON PLEAS
DIVISION, MAY 14, 1880.

LAZARUS V. ANDRADE, 43 L. T. Rep. (N. S.) 30.
The grantor of a bill of sale assigned to the grantee the
whole of the stock-in-trade, chattels, goods, and effects
in certain specified premises, and also the stock-in-
trade, goods, chattels, and effects which might at any
timo during the continuance of the security be brought
into the premises either in addition to or on substitu-
tion for the stock-in-trade, goods, chattels, and effects
therein at the time of the making of the bill of sale.
Held, by Lopes, J. (in further consideration), that the
property in stock-in-trade brought upon tho premises
subsequently to the making of the bill of sale passed
by it to the grantee.

THIS

IIS was an interpleader issue tried before Lopes, J. The plaintiff was the holder of a bill of sale given by one Phillips, whereby he assigned to the plaintiff "all and singular the stock-in-trade, chattels, goods, and effects now being in, upon, or about the messuage or dwelling-house, warehouse and premises, situate and being No. 62 Wilson street, Finsbury, in the county of Middlesex, tho particulars whereof are set forth in the schedule hereunder written. And also the stock-in-trade, goods, chattels, and effects which shall or may at any time or times during the continuance of this security be brought into the aforesaid messuage or dwelling-house, warehouse and premises,

or be appropriated to the use thereof, either in addition to or in substitution for stock-in-trade, goods, chattels, and effects now being therein or any of them."

The schedule specified various quantities of ostrich and other feathers and some furniture.

The defendant, an executive creditor, seized the property on Phillips's premises, including stock which had been brought there in substitution for that which was there at the date of the making of the bill of sale.

LOPES, J. This bill of sale purported to assign to the plaintiff all the stock-in-trade, chattels, goods and effects in the messuage, particulars whereof were set forth in a schedule thereunder written. And also the stock-in-trade, goods, chattels, and effects which should or might at any time or times during the continuance of the security be brought into the messuage, warehouse and premises, or be appropriated to the use thereof, either in addition to or in substitution for stock-in-trade, chattels, and effects now being therein, or any of them. The sheriff had seized stock-in-trade not being contained in the said schedule, nor in the premises when the bill of sale was executed, but other stock-in-trade not comprised in the schedule, which had been brought into the premises by the grantor subsequently to the date of the bill of sale. Such lastmentioned property had been brought into the premises in addition to or in substitution for stock-in-trade in the premises when the bill of sale was executed. It was contended for the defendant (the execution creditor) that the goods brought into the premises subsequently to the execution of the bill of sale did not pass to the plaintiff, and that the title of the defendant in respect of them was preferable to the title of the plaintiff (the claimant). Holroyd v. Marshall, 7 L. T. Rep. (N. S.) 172; and Leatham v. Amor, 38 L. T. Rep. (N. S.) 785, were relied upon by the plaintiff, and Belding v. Read (ubi sup.) by the defendant. principle deducible from these decisions is, that property to be after acquired, if described so as to be capable of being identified, may be, not only in equity but also at law, the subject-matter of a valid assignment for value. The contract must be one which a court of equity would specifically enforce. Belding v. Read, 3 H. & C. 955, was decided before the Judicature Acts, and is distinguishable from the present case. . The ground of that decision was that the description, "all other the personal estate and effects whatsoever now being or hereafter to be on the premises or elsewhere in the United Kingdom," was so vague that it did not entitle the claimant to institute a suit for specific performance of the contract. Neither the character of the property nor its whereabouts was indicated, and there was nothing to earmark it. In this case the property is to be brought into the premises, or to be appropriated to the use thereof, either in addition to or in substitution for property then on the premises. I think the assignment sufficiently specific, the property in question having become specific by being brought on to the premises in addition to or in substitution for property mentioned in the schedule. The case of Leatham v. Amor (ubi sup.) is a strong authority in favor of this view.

The

Judgment for the plaintiff.

NEW YORK COURT OF APPEALS ABSTRACT.

CORPORATION-RAILROAD COMPANY RIGHTS OF STOCKHOLDER-FORECLOSURE OF MORTGAGE- FORMATION OF NEW COMPANY. - An action was carried on to foreclose a mortgage upon the railroad and franchises of the T. & W. railroad company, and the mortgaged property sold thereunder to a committee representing the holders of the mortgage funds. A

portion of the stockholders of the company disputed the validity of the sale and of the bonds, and appointed a committee to represent the stockholders. An arrangement was made between the two committees whereby the opposition to the foreclosure sale was withdrawn and the stockholders of the company were awarded the right to subscribe for the stock of a new company to be organized by the bondholders' committee called the W. company, upon the terms set forth in a circular mentioned. By that circular the stockholders named were to have the option for thirty days from its date upon the payment of ten dollars per share in installments and the surrender of their old stock to join in the W. corporation. After thirty days the right to do this was to cease; the railroad property was to pass at once to the new corporation. This company was organized. Plaintiff in his complaint set up that the W.company, the defendant, obtained the property of the T. & W. company; that plaintiff was an owner of shares in the latter company; that he had no knowledge of the agreement between the committees until long after the expiration of the thirty days named, and that after he had notice and before the payment of the last assessment he tendered to the chairman of the purchasing committee of the bondholders the amount of the assessment upon his shares, and offered to surrender them, and demanded stock in the W. corporation, which demand was not complied with. Held, that no action for damage would lie by plaintiff against the W. corporation. If the foreclosure sale was invalid plaintiff might by proper proceeding attack it, but if he claimed rights under the arrangement made for the benefit of the stockholders of the T. & W. company between the committees, he must show that he had complied with the terms of the arrangement. Judgment affirmed. Thornton, appellant, v. Wabash Railway Co. et al. Opinion by Rapallo, J. [Decided Sept. 21, 1880.]

NEGOTIABLE INSTRUMENT - PAYMENT OF DEBT BY CHECK LOSS OF CHECK-CERTIFIED CHECK-PAYMENT ON FORGED INDORSEMENT-RIGHTS AND LIA

BILITIES OF PARTIES.-Where a party pays his own debt by a check to the order of his creditor or of a party nominated by his creditor, he can be called upon to pay it again in case the creditor loses or is de-. frauded of the check and it is paid to the finder or fraudulent holder on a forged indorsement. And the case is not varied by the circumstance that the check was certified after delivery and before payment, it not being shown that such certification was procured by the creditor to whom the check was given or by the payee of the check. If the check had been lost and the finder had procured it to be certified and forged the indorsement, the certification would not be binding upon the bank nor affect the rights of the parties after it had been surrendered. It is only in case the true owner of the check has received the certification that recourse can be had upon it against the certifying bank notwithstanding the subsequent loss of the check and the payment upon the forged indorsement. In this case where plaintiff received a check to the order of H. from the defendants on the M. bank, and this check was certified by the M. bank and afterward paid upon a forged indorsement, the amount of the check having been charged by defendant against plaintiff and by them settled, held, that defendant was liable to plaintiffs for the amount of the check, it not appearing that the certification was obtained by plaintiffs or their agent, or that the claim of defendants upon the M. bank for the check had been barred by the statute of limitation. It is well settled that a bank paying upon a forged indorsement must bear the loss and cannot charge to a depositor. Judgment affirmed. Thompson et al. v. Bank of British North America, appellants. Opinion by Rapallo, J. [Decided Sept. 21, 1880.]

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