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PENNSYLVANIA SUPREME COURT, MAY 21, 1883. holders of bonds then existing “as shall signify their

assent in writing thereto; and in case any such bondENTERPRISE TRANSIT CO. V. SHEEDY.

holder sball fail to file with the presideut of such corA notary public who took the acknowledgment of a married

poration his or her refusal in writing, to concar in the woman to a lease of her lands neglected to insert in his

said agreement within three months from the date certificate a statement required by statute, that the con

thereof, such boudholder shall be taken to have as. tents of the instrument had been made known to her. sented to the same.” Ample provision was made for The lease was recorded. Thereafter he annexed a new notice to the boudholders to appear and express in certificate in compliance with the statute in force. Held, writing their assents or dissents, and for the reservation that the second certificate was ineffectual to render the

of all the original rights of such as dissented. Held, lease valid as to the married woman.

that the statute which made the failure of a boudCTION of ejectment for a tract of land, the title of holder to signify his refusal to concur in the agreement

which in fee was vested in the defendant, Maryette of settlement within the specified time equivalent to Sheedy. Plaintiff claimed under a lease executed by an express assent in writing, did not impair the obligasaid defendant, aud the other defendant her husband. tion of the bond. Corporate mortgages securing

On the trial it appeared that the lease in question bonds are of a peculiar character, and each bondhad been executed by the defendants, and that the holder under them enters by fair implication into cernotary before whom the same was acknowledged tain contract relatious with his associates. Such bondaffixed at the date a certificate of the acknowledgment holders are not like stockholders in a corporation, of the defendant, Maryette, which did not state that i necessarily bound in the absence of fraud or undue inthe contents of the instrument had been made known fluence, by the will of the majority, when expressed to her. The lease was shortly after recorded. Five iu the way provided by law, but they occupy to some months thereafter he affixed a new certificate to the lease extent an analogous position toward each other. The in which he stated that the contents had been made mortgage with the issue and distribution of bonds known to her at the time of the acknowledgment men- under it, creates a trust, of which the selected morttioned in the first certificate. The court below directed gagee, or his duly constituted successor, is the trustee, a verdict for the defendants, on the ground that the and the bondholders primarily and the stockholders acknowledgment was defective, and from the judg- ultimately the beneficiaries. It not unfrequently hapment entered thereon plaintiff took a writ of error. pens that compromises and adjustments of couflicting Hamlin & Son and W. B. Chapman, for plaintiff in

interests become necessary in the course of the administration of such trusts. As in the present case a

very large majority of the bondholders sometimes 0. A. Hotchkiss and N. B. Smiley, for defendants in think it is for their own interest as well as that of their

associates to surrender a part of their rights and acBY THE COURT. This attempt to impart life to a

cept others instead, and they prepare and submit for void instrument has the merit of novelty. When Mrs.

execution an agreement, the object of which is to Sheedy affixed her name to the written instrument carry their plan into effect. No majority howerer and acknowledged it, the acknowledgment was con

large can compel a minority, small though it be, to fessedly so defective as not to bind her or pass her

enter into such an agreement against their will, and title to the land. It was then delivered and eleven under the Constitution of the United States, days thereafter recorded. More than five months it is probable that statute of a State, after the acknowledgment was actually taken and the

passed after the bonds were issued, subjecting the certificate thereof signed by the notary public in

minority to the provisions of the agreement without dorsed thereon, he wrote and signed a second certifi

their consent would be valid. But it seems to us : cate of acknowledgment. The parties to the instru- proper exercise of legislative power to require a miment did not again come before him, but he certifies | nority to act whenever such an arrangement is prowhat occurred months before. To this last certificate posed, and to provide that all shall be bound who do he adds facts not contained in his former certificate,

not in some direct way within a reasonable time after with a view and for the purpose of making valid the notice siguify their refusal to concur. To sustain such writing of a married woman, which was then invalid. legislation it is only necessary to invoke the principle Effect cannot be given to this latter action of the

enforced in statutes of limitations which make notary public.

neglect to sue within a specified time conclusive eriJudgment affirmed. dence of the abandonment of a cause of action. As

was said in Terry v. Anderson, 95 U. S. 634, where the UNITED STATES SUPREME COURT AB

limitation was of actions upon certain legal obligations STRACT.

that embarrassed the entire community at the close of the late civil war, “the obligation of old contracts

could not " in this way "be impaired, but their prompt APPEAL-REFUSAL OF NEW TRIAL NOT REVIEWABLF.

enforcement could be insisted upon or their abandon-The action of the court below in refusing a new ment claimed.” In Vance v. Vance, 108 U. S. 99, trial is not subject to review here. This has long been

where it was held that an article in the Constitution settled by the decisions of this court. Railroad Co v.

of Louisiana, adopted in 1868, which provided that exFraloff, 100 U. S. 24; Wabash Railway Co. v. MoDan.

isting secret mortgages and privileges should cease to iels, 107 id. 456. Terra Haute and Indianapolis Rail

have effect against third persons after the 1st of Januway Co. v. Struble. Opinion by Harlau, J.

ary, 1870, unless before that time recorded, did not im[Decided Nov. 26, 1883.]

pair the obligation of a contract between an infant and CONSTITUTIONAL LAW-STATE LAW IMPAIRING CON- her natural tutor. Miller, J., after stating that the TRACT-REQUIRING CORPORATE CREDITORS TO ACT OR strong current of modern legislation and judicial opinBE BOUND BY ACTION OF OTHER CREDITORS. - The ion was against the enforcement of secret liens on Legislatnre of Pennsylvania enacted a statute author- property, said: “We think that the law in requiring izing a settlement between a corporation and its credit- the owner of this tacit mortgage for the protection of ors, and providing for an agreement for converting the innocent persons dealing with the obligor to do thus entire debt into a funded indebtedness. The statute much to secure his own right and protect those iu igprovided in express terms that the agreement, if norance of those rights, did not impair the obligation entered into, should only be binding on such of the of the contract, since it gave ample time and op

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pertunity to do what was required and what was undertaking to keep alive and in full force a mortgage eminently just to every body." And in Jackson v. made by another party after it had been foreclosed, the Lemphire, 3 Pet. 290, it was said: “It is within the un- mortgaged property sold and the mortgage extindoubted power of State Legislatures to pass recording guished, held not to be a mortgage and to create no acts, by which the elder grantee shall be postponed to lien or privilege in the premises mentioned in the old a younger, if the prior deed is not recorded within the mortgage. New Orleans National Banking Association limited time: and the power is the same whether the V. Adams. Opinion by Woods, J. deed is dated before or after the recording act.” Gil- [Decided Nov. 12, 1883. ] Kilan v. Union Canal Co. Opinion by Waite, C. J.

MUNICIPAL BONDS--INTERNAL IMPROVEMENT--STEAM [Decided Nov. 26, 1883.]

MILL, NOT UNDER NEBRASKA STATUTE.-This case was CORPORATION-NEW YORK STATUTE-LIABILITY OF decided at the last term of this court, and is reported STOCKHOLDERS A CONTRACT ONE-LIMITATIONS-EX- in 106 U. S. 181. The court there held that a steam HAUSTING LEGAL REMEDY AGAINST CORPORATION — grist-mill was not a work of internal improvement PENAL LAWS HAVE NO EXTRA-TERRITORIAL FORCE. within the meaning of the statute of Nebraska, ap3-1) Section ten of the New York statute relating to proved February 15, 1869, authorizing counties, cities manufacturing corporations provides thus: “All the and precincts of organized counties "to issue bonds to i stockholders of every company incorporated under this aid in the construction of any railroad or other work sot shall be severally individually liable to the credit- of internal improvement.” It was also said that the ors of the company in which they are stockholders, to court was not justified by anything in Township of an amount equal to the amount of stock held by them Burlington v. Beasley, 94 U. S. 310, or in the decisions respectively for all debts and contracts made by such of the courts of Nebraska, “in holding that a steam or company until the whole amount of capital stock fixed other kind of grist-mill is of the class of internal imand limited by such company shall have been paid in, provements which municipal townships in that State and a certificate thereof shall have been made and re- are empowered, by the statute in question, to aid by corded as prescribed in the following section.” Held an issue of bonds.” The Supreme Court of Nebraska that the liability imposed by the section is a contract in Traves v. Merrick County, recently decided that a liability and not a penalty, and that the statute of grist-mill operated by water power was a work of inlimitations of six years and not three applied to it. ternal improvement within the meaning of the beforeBuch has been the construction given to section 10 by mentioned statute. This court adheres to its previous the Court of Appeals of New York. Wiles v. Suy- decision, citing as authority the following remark of dam, 64 N. Y. 173. (2) Section 24 of the statute pro- the Nebraska Court in the case above referred to. “In vides that no suit shall be brought against a stock- our view there is a clear distinction between aiding holder until an execution against the company shall the development of the water-power of the States-a have been returned unsatisfied in whole or in part.” | power that is continuing in its nature and may be Held, that in an execution returned unsatisfied by used without cost or expense, and must be used at cera court of the State of New York was not necessary tain points on a stream where a dam can be erected where the corporation had been adjudicated a bank- and power obtained-and a mill propelled by steam zupt and was shown to have had no other assets. The that must be attended with a continuous cost for fuel, object of section 24 was to compel the creditor to ex- and may at any time be moved to another locality.” haust the assets of the company before seeking to en- Osborne v. County of Adams. Opinion by Harlan, J. force the liability of the stockholder. When the declara- [Decided Nov. 5, 1883.] tion shows that this was done, and that a literal per

MUNICIPAL BONDS-VALID THOUGH UNSEALED-formance of the condition would have been vain and fruitless, the performance of the condition may well

WHEN EQUITY WILL ADJUDGE UNSEALED INSTRUMENT be held to have been excused. (3) The suit against the DICTION.—(1) If commissioners authorized by statute

AS SEALED-NEGLIGENCE- CITIZENSHIP GIVING JURISstockholder need not be prosecuted in equity. The

to subscribe in the corporate name of a town for stock statute makes every stockholder individually liable for the debts of the company to an amount equal to

in a railroad company, and upon obtaining the consent the amount of his stock. This liability is fixed and

of a certain majority of taxpayers, to issue bonds of does not depend on the liability of other stockholders.

the town under the hands and seals of the com

missioners, and to sell the bonds and invest the proThere is no necessity for bringing in other stockholders

ceeds of the sale in stock of the railroad company, or creditors. Any creditor who has recovered judg-which shall be held by the town with all the rights of ment against the company, and sued out an execution thereon which has been returned unsatisfied, may sue

other stockholders, issue without obtaining the reang stockholder, and no other creditor can. Shilling, in exchange for stock, such bonds signed by the com

quisite consent of taxpayers to the railroad company ton v. Howland, 53 N. Y. 371; Wiles v. Suydam, 64

missioners, but on which the seals are omitted by overid. 173; Handy v. Draper, 89 id. 334; Rocky Mountain Nat. Bank v. Bliss, id. 338. (4) The penal laws of one

sight and mistake; and the town sets up the want of

seals in defense of an action at law afterward brought State can have no operation in another. They are strictly local and affect nothing more than they can

against it by one who has purchased such bonds for

value, in good faith, and without observing the omis. Teach. The Antelope, 10 Wheat. 66; Scoville v. Can

sion, to recover interest on the bonds; a court of equity field, 14 Johns. 338; Western Transp. Co. v. Kilder

at his suit will decree that the bonds be held as valid house, 87 N. Y. 430: Lemmon v. People, 20 id. 562; Henry v. Sargeant, 13 N. H. 321; Story Confl. L. (8th strain the setting up of the want of seals in the action

as if actually sealed before being issued, and will reed.), S 621. Flash v. Conn. Opinion by Woods, J.

at law. It has been settled upon fundamental princi[Decided Nov. 26, 1883.]

ples of equity jurisprudence, by many precedents of MORTGAGE-WHAT DOES NOT CONSTITUTE-ATTEMPT high authority, that when the seal of a party required TO REVIVE DISCHARGED MORTGAGE.-While no pre- to make an instrument valid and effectual at law has cise form of words is necessary to constitute a mort- been omitted by accident or mistake, a court of changuge, yet there must be a present purpose of the mort- cery, in order to carry out his intention, will at the sagor to pledge his land for the payment of a sum of suit of those who are justly and equitably entitled to money, or the performance of some other act, or it the benefit of the instrument, adjudge it to be as valid cannot be construed to be a mortgage. Wilcox v. Mor- as if it had been sealed, and will grant relief accordris, 1 Murph. 116; S.C., 3 Am. Dec. 678. An agreement ingly, either by compelling the seal to be affixed, or by

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error.

PENNSYLVANIA SUPREME COURT, MAY 21, 1883. holders of bonds then existing “as shall signify their

assent in writing thereto; and in case any such bondENTERPRISE TRANSIT Co. v. SHEEDY.

holder sball fail to file with the president of such corA notary public who took the acknowledgment of married

poration his or her refusal in writing, to concur in the woman to a lease of her lands neglected to insert in his

said agreement within three months from the date certificate a statement required by statute, that the con- thereof, such bondholder shall be taken to have astents of the instrument had been made known to her. sented to the same." Ample provision was made for The lease was recorded. Thereafter he annexed a new notice to the bondholders to appear and express in certificate in compliance with the statute in force. Held, writing their assents or dissents, and for the reservation that the second certificate was ineffectual to render the

of all the original rights of such as dissented. Held, lease valid as to the married woman.

that the statute which made the failure of a boud. CTION of ejectment for a tract of land, the title of holder to signify his refusal to concur in the agreement

which in fee was vested in the defendant, Maryette of settlement within the specified time equivalent to Sheedy. Plaintiff claimed under a lease executed by an express assent in writing, did not impair the obligasaid defendant, aud the other defendant her husband. tion of the bond. Corporate mortgages securing

On the trial it appeared that the lease in question bonds are of a peculiar character, and each bondhad been executed by the defendants, and that the holder under them enters by fair implication into cernotary before whom the same was acknowledged tain contract relations with his associates. Such bond. affixed at the date a certificate of the acknowledgment holders are not like stockholders in a corporation, of the defendant, Maryette, which did not state that necessarily bound in the absence of fraud or undue in. the contents of the instrument had been made known fluence, by the will of the majority, when expressed to her. The lease was shortly after recorded. Five in the way provided by law, but they occupy to some months thereafter he affixed a new certificate to the lease extent an analogous position toward each other. The in which he stated that the contents had been made mortgage with the issue and distribution of bonds known to her at the time of the acknowledgment men- under it, creates a trust, of which the selected morttioned in the first certificate. The court below directed gagee, or his duly constituted successor, is the trustee, a verdict for the defendants, on the ground that the and the bondholders primarily and the stockholders acknowledgment was defective, and from the judg- ultimately the beneficiaries. It not unfrequently hapment entered thereou plaintiff took a writ of error. pens that compromises and adjustments of couflicting Hamlin & Son and W. B. Chapman, for plaintiff in

interests become necessary in the course of the ad

ministration of such trusts. As in the present case a error.

very large majority of the bondholders sometimes 0. A. Hotchkiss and N. B. Smiley, for defendants in think it is for their own interest as well as that of their

associates to surrender a part of their rights and acBY THE COURT. This attempt to impart life to a cept others instead, and they prepare and submit for void instrument has the merit of novelty. When Mrs. execution an agreement, the object of which is to Sheedy affixed her name to the written instrument carry their plan into effect. No majority however and acknowledged it, the acknowledgment was con- large can compel a minority, small though it be, to fessedly so defective as not to bind her or pass her enter into such an agreement against their will, and title to the land. It was then delivered and eleven

under the Constitution of the United States, days thereafter recorded. More than five months it is probable that statute of a State, after the acknowledgment was actually taken and the passed after the bonds were issued, subjecting the certificate thereof signed by the notary public in- minority to the provisions of the agreement without dorsed thereon, he wrote and signed a second certifi- their consent would be valid. But it seems to us & cate of acknowledgment. The parties to the instru- proper exercise of legislative power to require a miment did not again come before him, but he certifies nority to act whenever such an arrangement is prowhat occurred months before. To this last certificate posed, and to provide that all shall be bound who do he adds facts not contained in his former certificate, not in some direct way within a reasonable time after with a view and for the purpose of making valid the notice signify their refusal to concur. To sustain such writing of a married woman, which was then invalid. legislation it is only necessary to invoke the principle Effect cannot be given to this latter action of the

enforced in statutes of limitations which make notary public.

neglect to sue within a specified time conclusive eviJudgment affirmed. dence of the abandonment of a cause of action. As

was said in Terry v. Anderson, 95 U. S. 634, where the UNITED STATES SUPREME COURT AB

limitation was of actions upon certain legal obligations STRACT.

that embarrassed the entire community at the close of the late civil war, “the obligation of old contracts

could not” in this way "be impaired, but their prompt APPEAL-REFUSAL OF NEW TRIAL NOT REVIEWABLF.

enforcement could be insisted upon or their abandon-The action of the court below in refusing a new

ment claimed." In Vance v. Vance, 108 U. S. 91, trial is not subject to review here. This has long been

where it was held that an article in the Constitution settled by the decisions of this court. Railroad Co v.

of Louisiana, adopted in 1868, which provided that exFraloff, 100 U. S. 24; Wabash Railway Co. v. McDanisting secret mortgages and privileges should cease to iels, 107 id. 456. Terra Haute and Indianapolis Rail

have effect against third persons after the 1st of Japuway Co. v. Struble. Opinion by Harlau, J.

ary, 1870, unless before that time recorded, did not im[Decided Nov. 26, 1883.]

pair the obligation of a contract between an infant and CONSTITUTIONAL LAW-STATE LAW IMPAIRING CON

her natural tutor. Miller, J., after stating that the TRACT-REQUIRING CORPORATE CREDITORS TO ACT OR strong current of modern legislation and judicial opinBE BOUND BY ACTION OF OTHER CREDITORS. -- The ion was against the euforcement of secret liens on Legislatnre of Pennsylvania enacted a statute author- property, said: “We think that the law in requiring izing a settlement between a corporation and its credit- the owner of this tacit mortgage for the protection of ors, and providing for an agreement for converting the innocent persons dealing with the obligor to do thus entire debt into a funded indebtedness. The statute much to secure his own right and protect those in igprovided in express terms that the agreement, if norance of those rights, did not impair the obligation entered into, should only be binding on such of the of the contract, since it gave ample time and op

no

portunity to do what was required and what was undertaking to keep alive and in full force a mortgage eminently just to every body." And in Jackson v. made by another party after it had been foreclosed, the Lamphire, 3 Pet. 290, it was said: “It is within the un- mortgaged property sold and the mortgage extindoubted power of State Legislatures to pass recording guished, held not to be a mortgage and to create no acts, by which the elder grantee shall be postponed to lien or privilege in the premises mentioned in the old a younger, if the prior deed is not recorded within the mortgage. New Orleans National Banking Association limited time; and the power is the same whether the V. Adams. Opinion by Woods, J. deed is dated before or after the recording act.” Gil- [Decided Nov. 12, 1883.] fillan v. Union Canal Co. Opinion by Waite, C. J.

MUNICIPAL BONDS--INTERNAL IMPROVEMENT--STEAM [Decided Nov. 26, 1883. ]

MILL, NOT UNDER NEBRASKA STATUTE.—This case was CORPORATION-NEW YORK STATUTE-LIABILITY OF

decided at the last term of this court, and is reported STOCKHOLDERS A CONTRACT ONE-LIMITATIONS-EX- in 106 U. S. 181 The court there held that a steam HAUSTING LEGAL REMEDY AGAINST CORPORATION grist-mill was not a work of internal improvement PENAL LAWS HAVE NO EXTRA-TERRITORIAL FORCE. within the meaning of the statute of Nebraska, ap-(1) Section ten of the New York statute relating to proved February 15, 1869, authorizing counties, cities manufacturing corporations provides thus: “All the and precincts of organized counties “to issue bonds to stockholders of every company incorporated under this aid in the construction of any railroad or other work act shall be severally individually liable to the credit- of internal improvement.” It was also said that the ors of the company in which they are stockholders, to court was not justified by anything in Township of an amount equal to the amount of stock held by them Burlington v. Beasley, 94 U. S. 310, or in the decisions respectively for all debts and contracts made by such of the courts of Nebraska, “in holding that a steam or company until the whole amount of capital stock fixed other kind of grist-mill is of the class of internal imand limited by such company shall have been paid in, provements which municipal townships in that Stato and a certificate thereof shall have been made and re- are empowered, by the statute in question, to aid by corded as prescribed in the following section.Held an issue of bonds." The Supreme Court of Nebraska that the liability imposed by the section is a contract in Traves v. Merrick County, recently decided that a liability and not a penalty, and that the statute of grist-mill operated by water power was a work of inlimitations of six years and not three applied to it. ternal improvement within the meaning of the beforeSuch has been the construction given to section 10 by mentioned statute. This court adheres to its previous the Court of Appeals of New York. Wiles v. Suy-decision, citing as authority the following remark of dam, 64 N. Y. 173. (2) Section 24 of the statute pro- the Nebraska Court in the case above referred to. “In vides that no suit shall be brought against a stock- our view there is a clear distinction between aiding holder until an execution against the company shall the development of the water-power of the States-a hare been returned unsatisfied in whole or in part.” power that is continuing in its nature and may be Held, that in an execution returned unsatisfied by used without cost or expense, and must be used at cera court of the State of New York was not necessary tain points on a stream where a dam can be erected where the corporation had been adjudicated a bank- and power obtained-and a mill propelled by steam rupt and was shown to have had no other assets. The that must be attended with a continuous cost for fuel, object of section 24 was to compel the creditor to ex- and may at any time be moved to another locality.” haust the assets of the company before seeking to en- Osborne v. County of Adums. Opinion by Harlan, J. force the liability of the stockholder. When the declara- [Decided Nov. 5, 1883.] tion shows that this was done, and that a literal per- MUNICIPAL BONDS-VALID THOUGH UNSEALEDformance of the condition would have been vain and

WHEN EQUITY WILL ADJUDGE UNSEALED INSTRUMENT fruitless, the performance of the condition may well

AS SEALED-NEGLIGENCE- CITIZENSHIP GIVING JURISbe held to have been excused. (3) The suit against the

DICTION.-(1) If commissioners authorized by statute stockholder need not be prosecuted in equity. The

to subscribe in the corporate name of a town for stock statute makes every stockholder individually liable

in a railroad company, and upon obtaining the consent for the debts of the company to an amount equal to the amount of his stock. This liability is fixed and

of a certain majority of taxpayers, to issue bonds of

the town under the hands and seals of the comdoes not depend on the liability of other stockholders.

missioners, and to sell the bonds and invest the proThere is no necessity for bringing in other stockholders

ceeds of the sale in stock of the railroad company, or creditors. Any creditor who has recovered judg-which shall be held by the town with all the rights of ment against the company, and sued out an execution

other stockholders, issue without obtaining the rethereon which has been returned upsatisfied, may sue

quisite consent of taxpayers to the railroad company any stockholder, and no other creditor can. Shilling

in exchange for stock, such bonds signed by the comton y. Howland, 53 N. Y. 371; Wiles v. Suydam, 64

missioners, but on which the seals are omitted by overid. 173; Handy v. Draper, 89 id. 334; Rocky Mountain

sight and mistake; and the town sets up the want of Nat. Bank v. Bliss, id. 338. (4) The penal laws of one

seals in defense of an action at law afterward brought State can have no operation in another. They are

against it by one who has purchased such bonds for strictly local and affect nothing more than they can

value, in good faith, and without observing the omis. reach. The Antelope, 10 Wheat. 66; Scoville v. Can

sion, to recover interest on the bonds; a court of equity field, 14 Johns. 338; Western Transp. Co. v. Kilder

at his suit will decree that the bonds be held as valid house, 87 N. Y. 430; Lemmon v. People, 20 id. 562;

as if actually sealed before being issued, and will reHenry v. Sargeant, 13 N. H. 321 ; Story Confl. L. (8th

strain the setting up of the want of seals in the action ed.), S 621. Flash v. Conn. Opinion by Woods, J.

at law. It has been settled upon fundamental princi(Decided Nov. 26, 1883.]

ples of equity jurisprudence, by many precedents of MORTGAGE-WHAT DOES NOT CONSTITUTE-ATTEMPT high authority, that when the seal of a party required TO REVIVE DISCHARGED MORTGAGE.-While no pre- to make an instrument valid and effectual at law bas cise form of words is necessary to constitute a mort- been omitted by accident or mistake, a court of cbangage, yet there must be a present purpose of the mort- cery, in order to carry out his intention, will at the gagor to pledge his land for the payment of a sum of suit of those who are justly and equitably entitled to money, or the performauce of some other act, or it the benefit of the instrument, adjudge it to be as valid cannot be construed to be a mortgage. Wilcox v. Mor- as if it had been sealed, and will grant relief accordris, 1 Murph. 116; S. C., 3 Am. Dec. 678. An agreement ingly, either by compelling the seal to be affixed, or by

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restraining the setting up of the want of it to defeat a erty. Such has been the uniform and well-settled recovery at law. Smith v. Aston, Freem. Ch. 308; S. doctrine of this court. State Bank of Ohio v. Knoop, C., Cas. temp. Fiuch, 273; Cockerell v. Cholmeley, 1 16 How. 369. As was said in Ohio Life Ins. and Russ. & Myl. 418; Wadsworth v. Wendell, 5 Johns. Trust Co. v. Debolt, 16 How. 416: “But this rule of Ch. 224; Montville v. Haughton, 7 Conn. 543; Rutland interpretation is confined to ordinary acts of legislav. Paige, 24 Vt. 181. See also Wiser v. Blachly, 1 tion, and does not extend to the contracts of the Johns. Ch. 607; Green v. Morris & Essex R. Co., 1 State, although they should be made in the form of a Beas. 165, and 2 McCart. 469; Druiff v. Parker, L. R., 5 law. For it would be impossible for this court to exEq. 131. See also Morrison v. Bernards, 7 Vroom, 219; ercise any appellate power in a case of this kind, Draper v. Springport, 104 U. S. 501; Dallington v. unless it was at liberty to interpret for itself the inPultney, Copp, 260; DeReimer v. Cantillon, 4 Johns.Ch. strument relied on as the contract between the 85. (2) The mere fact that the purchasers at the time of parties. It must necessarily decide whether the their purchase did not observe the omission of seals words used are words of contract, and what upon securities having in all other respects the ap- is their true meaning, before it can deterpearance of municipal bonds, is not such negligence as termine whether the obligation, the instrument should preveut them from appiying to a court of created, has or has not been impaired by the law comequity to correct a mistake of this character. See plained of. Now in forming its judgment upon this Harris v. Pepperell, L. R., 5 Eq. 1; Elliott v. Sackett, subject, it can make no difference whether the instru108 U. S. (3) A bill in equity in the Circuit Court of ment claimed to be a contract is in the form of a law, the United States against a town in one State by a passed by the Legislature, or of a covenant or agreecitizen of another, for relief against the accidental ment by one of its agents acting under the authority omission of seals from bonds of the defendant, payable of the State." To the same effect are Jefferson Branch to bearer and held by the plaintiff, some of which are Bank v. Skelly,1 Black, 436, and Bridge Proprietors v. owned by him, and others of which are owned in Hobokeu Co., 1 Wall. 116. It is true that in all these different amounts, part by citizens of the State cases the State courts, whose judgments were brought in which the town is, and part by citizens of other into review, had construed the statutes as not creating States, and have been transferred to him by the real a contract; but the principle is equally applicable in owners for the mere purpose of being sued, should be the converse case. Burgess v. Seligman, 107 U. 8. 20. dismissed uuder the act of March 3, 1875, ch. 137, § 5, Louisville & Nashville Railroad Co. v. Palmer. Opinso far as regards all bonds held by citizens of the same ion by Matthews, J. State as the defendant, and bonds held by a citizen of [Decided Nov. 19, 1883.] another State to a less amount than $500. See Sheldon v. Sill, 8 How. 441; Corbin v. Black Hawk County, 105 U. S. 659; Barney v. Baltimore, 6 Wall. 280; Wil

UNITED STATES CIRCUIT AND DISTRICT liams v. Notaway, 104 U. S. 209; Thompson v. Perrine,

COURT ABSTRACT.* 106 id. 589; Chickaming v. Carpenter, id. -663; Douglas Commissioners v. Bolles, 94 id. 104; Cromwell v. Sac County, id. 351. Inhabitants of Bernards v. Steb

CARRIER- LIABILITY TO PASSENGER FOR NEGLI bins. Opinion by Gray, J.

GENCE CONTRIBUTORY NEGLIGENCE – RIDING [Decided Nov. 26, 1883.]

ENGINE. --(1) The right which a passenger by railway

has to be carried safely, does not depend on his harTAXATION- EXEMPTION OF A CORPORATION FROM

ing made a contract, but the fact of his being there TAXATION NOT ASSIGNABLE-CONSTITUTIONAL LAW

creates a duty on the part of the company to carry IMPAIRING CONTRACT-WHEN FEDERAL COURT WILL

him safely. It suffices to enable him to maintain an NOT FOLLOW STATE COURT.-(1) Au exemption from

action for negligence if he was being carried by the taxation conferred upon a railroad company, unless

railroad company voluntarily, although gratuitously, authority to assign is found in the statute granting

and as a mere matter of favor to him. Philadelphia, the exemption, is a personal privilege and does not pass

etc., R. Co. v. Derby, 14 How. 468; Steamboat New by a conveyance of the railroad and franchises of the World v. King, 16 id. 469. The carrier does not, by corporation to another company. See Morgan v.

consenting to carry a person gratuitously, relieve himLouisiana, 93 U. 8. 217; Wilson v. Gaines, 103 id. 417.

self of responsibility for negligence. When the assent Authority to assign cannot be conferred by a Legisla

to his riding free has been legally and properly given, ture acting under a Constitution providing that taxa

the person carried is entitled to the same degree of tion shall be equal and forbidding exemption from

care as if he paid his fare. Todd v. Old Colony, etc. taxation. In Trask v. Maguire, 18 Wall. 391, it was

R. Co., 3 Allen, 18. As is tersely stated by Blacksaid, speaking of provisions in the Constitution of Mis- burn, J., in Austin v. Great Western R. Co., 15 Weekly souri: “The inhibition of the Constitution applies in

Rep. 863, “the right which a passenger by railway has all its force against the renewal of an exemption

to be carried safely does not depend on his having equally as against its original creation;" and in Shields made a contract, but the fact of his being there v. Ohio, 95 U. S. 319, it was decided that in cases of

creates a duty on the part of the company to carry corporations created by consolidation, the powers of

him safely." (2) The presumption of law is that perthe new company did not pass to it by transmission

song riding upon trains of a railroad carrier which are from its constituents, but resulted from a new legisla- palpably not desigued for the transportation of pertive grant, that could not transcend the constitutional

sons, are not lawfully there, and if they are permitted authority existing at the time it took effect. (2) As to

to be there by the consent of the carrier's employees, a State law claimed to impair the obligation of a con

the presumption is against the authority of the emtract, this court will decide for itself independently of ployees to bind the carrier by such consent. But such the decision of the State court, whether there is a

presumption may be overthrown by special circumcontract, and whether its obligation is impaired; and

stances; and where the railroad company would deif the decision of the question as to the existence of

rive a benefit from the presence of drovers upon its the alleged contract requires a construction of State

cattle trains, and may have allowed its employees in Constitutions and laws, it is not necessarily governed

charge of such trains to invite or permit drovers to by previous decisions of the State courts upon the

accompany their cattle, the presumption against a same or similar points, except where they have been

license to the person thus carried may be overthrown. 80 firmly established as to constitute a rule of prop

* Appearing in 17 Federal Reporter.

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