4. Nor will it make any difference that the creditor issuing the second attachment became such creditor by discounting for said consignor, at the date and time of the last of said shipments, two bills drawn by the consignor against said shipment and that the factor was advised, by the consignor's letter inclosing the bill of lading for that shipment, of the drawing of said two bills against said shipment, and was requested to honor the same; and such letter and bill of lading were received by the factor on the 5th of April, 1854, before the first attachment was served or issued. ...id
1. The drawing of a check on a Bank by one who keeps an account in it, and has, at the time, moneys to the same or a larger amount to his cre- dit on its books, and a delivery of
the check to the person named in it as payee, do not, of themselves, ope- rate as an assignment to such payee of the title to any of the moneys thus standing to the credit of the drawer of the check. Butterworth, Receiver, v. Peck et al.,....... 34Ĺ
2. In an action by the payee of a check against the drawer, it is no defense that it was given by the defendant for a debt owing by a third person to one who was the payee's principal; and that the payee accepted it as agent for the debt due to his principal, the payee being expressly authorized to settle such debt and receive payment of it. Fish v. Jacobsohn, ... ...514
3. Such agent, on receipt of such check, having credited his principal with the amount of it, and having subsequently, in consequence of receiving it and before it was pro- tested, paid other moneys to his principal's said debtor which other- wise he might have retained and applied upon the debt for which the check was given, and such check, being in terms payable to such agent's order, he can maintain an action on it, in his own name....id
1. Where a person having an account with a Bank, and being at the time its creditor, remits to it a bill of exchange "for his credit," such per- son having prior thereto made remittances to the Bank and drawn drafts upon it, and by arrangement between them, was to be allowed interest at the rate of four per cent on his average balances; such Bank does not by the mere receipt of such bill become the owner of it, in such sense that it can divest the remitter's title, by transferring it as security for a precedent debt. Scott v. The Ocean Bank,..
2. Although, by making such a transfer of it, the Bank may be charged by the remitter for its amount, still he is at liberty to pur- sue it and recover its proceeds from any one to whom it has been paid, and to whom it was transferred by such Bank as mere security for a precedent debt. .id
3. Such a transferree is not a holder for value within the commercial meaning of that phrase, so as to have a right to retain the proceeds against the true owner, notwithstanding it may have been taken without notice of any defect in the title of the Bank. ......id
4. An officer or manager of a manu- facturing corporation, has no autho- rity, by mere virtue of his office or agency, to accept a bill for the ac commodation of the drawer, drawn and used to raise money for the use of the latter. Farmers' & Mechanics' Bank v. Empire Stone Dressing Co., ..275
5. One who discounts a bill of ex- change before acceptance by the drawee, does so on the credit of the drawer or indorser, or both, and is not a holder for value paid on the faith of the acceptance. id
6. Whether any or all the officers of such a corporation can bind the cor- poration by accepting bills for the accommodation of third parties? Quære. .id
Vide BANK СНЕСК. PROMISSORY NOTES.
1. Where a bond is given by several persons, by the terms of which they obligate themselves to pay a sum therein named, "on the completion of the opening of Canal street and the widening of Walker street, ac- cording to the plan now in the hands
of Commissioners," &c., and the plan is subsequently, without the consent of the obligors, so changed that a gore of land at the part of Canal street, bounded by Centre, Walker and Baxter streets, instead of being taken and converted into a park, as the original plan contemplated, is not taken, but is left to be built upon, and Canal street is extended an ad- ditional distance, and the work is completed according to the modified plan, such obligors are not liable upon said bond. Giles v. Crosby et al.,....
2. The question of their liability on such bond is not affected by the fact that the change of plan made the improvement less expensive than it would have been if completed ac- cording to the plan referred to in the bond... ..id
1. Entries in co-parternership books, made by one partner after dissolu- tion, not evidence against the other. Boyd v. Foot & Cole, ...110
Vide PRACTICE, title DISCOVERY.
1. A real estate broker, employed by the defendant to effect or negotiate an exchange of certain of the de- fendant's real estate for other spe- cified property, at given prices, does not become entitled to commissions until he obtains a contract which his employer accepts, or such a con- tract as his employment authorizes him to negotiate, made with some third person, which the latter is able and ready to perform, or the specific performance of which can be com- pelled. Barnes v. Roberts, .....73
2. Broker selling property by autho- rity of the tortious or felonious pos-
sessor thereof, is liable to the true owner for its value, although he acts in good faith and has paid over the proceeds. Anderson et al. v. Nicho- las, .121
3. Where a broker is instructed to purchase, as such broker, for the plaintiff, a specified number of shares of the stock of a corporation named, and he accordingly contracts to buy the specified number and receives a certificate of stock regular in form and issued by the proper officer of the corporation for the specified number of shares, receives payment therefor from his principal and makes payment to his vendor, and such certificate proves to be value- less and not to represent actual stock, such broker, where he has acted in good faith and according to the customary course of business among brokers in such cases, is not liable to his employer for any dam- age resulting to him from such trans- action and purchase. Peckham v. Ketchum et al., .....506
4. It will not affect the question of such broker's liability that the shares he so bought were transferred to him by the vendor on the books of the Company, and by him trans- ferred to his principal, and that he did not disclose to the vendor his agency in the transaction-that being according to the established and customary course of business in such transactions.....
damage from such neglect) will not operate as a forfeiture or otherwise to deprive such officers of a just compensation for the use of chattels furnished by them to the corpora- tion for the purposes of its business. Rider et al. v. The Union India Rubber Company, ..85
$895-110. Limitation of actions; Reciprocal demands; Payment on account. Peck v. New York and Liverpool United States Mail Steamship Co.,......226 § 122. Application by a third person to be made a party. Dayton v. Wilkes,... ...655 157. Pleadings, how verified when there are several parties or persons. Gray et al. v. Ken- dall et al., ...666
§ 174. Relief from judgment so as to permit an appeal after the time to appeal has expired, on the ground of mistake, inad- vertence or excusable neglect. Jellinghaus v. New York Insu- rance Company, ...678
220. Injunction order may be signed by the Judge and be de- livered to the officer, before the actual service of the summons on the defendant. Leffingwell, Receiver, v. Chave et ux.,..703
$220. It is sufficient to serve with the injunction the papers upon which it was granted, whether they are technically affidavits or not. .id
§ 222. It it is not essential that the plaintiff or his agent or attorney, should sign the under- taking, to be given on obtain- ing an injunction. ... ...id
1. Rule of damages where property is lost or injured on the route of carriers over only a portion of the intended journey. Harris v. Pana- ma R. R. Co.,..... ..312
2. A party doing business under the name and style of "Spaulding's Ex- press Freight Line," and in that name receiving goods at New York "to be forwarded by Spaulding's Express to" Louisville, without liability for damage, "if delivered at Louisville depot in good order," without lia- bility "for wrong delivery of goods marked by initials," or "for wrong carriage of goods that are imperfectly marked," and, in case of loss or da- mage for which Spaulding's Express
may be liable, stipulating that the latter shall have the benefit of any insurance effected by the owner, is a carrier of goods and not a forwar- der merely, notwithstanding he em- ploys the conveyances of third par- ties only, (Railroad Companies, &c.,) in the performance of his contract. Read et al. v. Spaulding,.......395
3. Where goods in a railroad depot near a river were injured by an ex- traordinary flood, rising higher than any flood had ever risen before, which it was no negligence not to anticipate and from which, when the rise of the water became apparent, the goods could not be delivered, if the carrier in the due discharge of his duty had the goods in the regular and usual course of transportation so that their being in the depot at the time was proper, the injury is by the act of God in such sense that the carrier is excused. ....... id
4. But it is the duty of the carrier to carry and deliver within a reasona- ble time, and if, when the goods were in the depot and the flood came, he had violated his duty and was under the actual pressure of fault and neglect, without which the goods would have been safe, he is not excused.... ...id
5. A carrier is liable for injury to goods caused by inevitable accident, or what is termed the act of God, if, by his culpable negligence or un- excused and unreasonable delay in the transportation, he unnecessarily exposes the goods to the peril...id
6. When goods were purchased in Connecticut by persons doing busi- ness at Liverpool, England, to be delivered by the vendor on ship board in New York, and were so Idelivered on board the defendant's ship, then bound for Liverpool, and were received by the defendants for transportation to Liverpool, and a receipt given therefor specifying the price of freight; but before bills of lading were delivered or executed,
and before the ship sailed, she was | 10. A Railroad Company may limit
destroyed by an accidental fire at the wharf without any actual negligence of the defendants, and the goods were burned: Held, that the defend- ants were liable as common carriers for the loss of the goods. Lakeman et al. v. Grinnell et al.,. . . . . . . .625
7. The measure of damages where goods are lost before the ship of the carrier leaves the port of lading, is the value of the goods at that port, and the plaintiff is not entitled to the value at the port of destination less the cost of transportation....id
8. Where goods intrusted to a com- mon carrier for carriage, are lost by accident without any actual negli- gence on his part, the plaintiff is not entitled to recover interest on the value of the goods, not even from the time of the commencement of suit.....
9. To an action for an injury to the person, sustained by one who was riding in a car of a Railroad Com- pany, through the alleged negligence of the servants of the Company, it is a good defense that the person injured was at the time riding by virtue of a special contract which was evidenced by a pass or free ticket accepted and used by him to enable him to take charge and care of his live stock while on the rail- road, and as part of the contract for transporting such stock, which con- tained an express stipulation that "by accepting or using it he ex- pressly releases the Company, in consideration of this pass and the reduction of price below the tariff rates, from all liability for injury to said stock from suffocation, crowd- ing, trampling, or delay in trans- portation, or for injury to his person or stock arising from any cause whatsoever," the answer also aver- ring that the injury to the person was not caused by any fraudulent, willful or reckless act or misconduct or gross neglect. Boswell, Adm'r, v. The Hudson River R. R. Co.,...699
their common law liability as car- riers of passengers, by express con- tract with the passenger upon suffi- cient consideration, so as not to be liable for casualties not arising from fraud, willfulness, recklessness, or gross neglect.. ..id
COMPROMISE.
Vide DEBTOR AND CREDITOR.
CONSIGNOR AND CONSIGNEE. Vide ATTACHMENT, 2, 3, 4.
Vide PRACTICE, title CONTEMPT.
1. A person who receives from one party to an illegal contract, money paid in execution and satisfaction of it to the use of the other party to such contract, on a promise to pay it over to such other party, cannot defend an action brought by the latter to recover such money, on the ground of such prior illegal contract, where the person receiving such money and making such promise in no way participated in or was a party to it, and did not know of it when he received such money and made such promise. Merrit v. Mil- lard, 645
Vide ACTION, 1, 2. AGENT, 1, 2. AGREEMENT.
1. One who sells stock without the authority of the owner, but on the employment of a thief or tortious possessor of the certificate, is liable
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