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rowed. Defendant qualified as executrix, December other parties iu the United States court. Appellant 29, 1880, and then for the first time was there a legal as required by the laws of Indiaua, where the atrepresentative of Rau's estate. Plaintiff kept the tachment was made, gave to the marshal a delivery transactions alive from time to time, and finally noti- bond for the appraised value of the property, and the fied the executrix to furnish additional margin, and in property was returned to him. According to the law default of so doing they would buy in the stock on her of Indiana, the giving of the delivery bond did not diaccount, which she neglecting to do, plaintiffs bought vest the lien of the attachment upon the goods, which in stock at a loss of $9,437.98. Held, that plaintiffs were remained, in coutemplation of law, in possession entitled to recover. While it is clear that after the of the officer. Appellant disposed of goods there after death of Rau the plaintiff could enter into no fresh judgment was rendered in the action in which the transactions in the purchase or sale of stocks on his ac- goods were attached, directing the sale thereof. The count or that of his estate, yet in execution of unexecu-appellant, as required by the conditious of this bond, ted orders, or a general authority to deal in stocks for not being able to return the specific property attached, his account given before his death. The agency was paid to the marshal the full amount of its appraised coupled with an interest, and was not revoked by the value. He thereupon, the money being in the mardeath of the principal. Hunt v. Rousmau, 8 Wheat. shal's hands, undistributed, filed a bill in equity 164. Hess v. Rau. Opinion by Andrews, J. (See 29 against the various parties in the suits, asking that the Eng. R. 100; see ante, 192.)
fund from the attached property be declared to belong [Decided March 21, 1884.]
to him. Held, that he was entitled to equitable relief. EVIDENCE-OPINIONS AS TO MENTAL CONDITION OF
Authorities cited: Louthain v. Fitzer, 78 Ind. 449; GRANTOR. -Plaintiff's testator brought suit to set aside
Risher v. Gilpin, 29 id. 53; Watson v. Sutherland, 5 an assignment of a bond and mortgage to defendant,
Wall. 74; Freeman v. Howe, 24 How. 450; Bank v. basing their right to relief upon showing that at the
Turnbull, 16 Wall. 190; Martin v. Willis, 1 Fowl. 160; time the transfer was made the assignor was imbecile
Buck v. Colbath, 3 Wall. 334; Haggan v. Lucas, 10 or unsound of mind, and mentally incompetent and
Pet. 400; Clarke v. Mathewson, 12 id. 164; Minnesota incapacitated to make the same. The jury so found.
Co. v. St. Paul Co., 2 Wall. 609; Van Ordeu v. Morton, On the trial testator's children and other witnesses
99 U. S. 278. Krippendorf v. Hyde. Opinion by Mat
thews, J. were allowed to give their impressions as to his mental condition from acts and declarations made by him in APPEAL-SEVERAL DEBTS COMBINED EXCEEDING $5,000 their presence, but not to them. Held, that the excep- -JUDGMENT RECOVERED WHEN NOT AFFECTED — EXEtion to the general rule that witnesses must be exam- CUTION RELATES BACK-LEASEHOLD INTEREST-TRADE ined as facts, and not as to any opinion or conclusion FIXTURES--LEVY NOT DEFEATED BECAUSE POSSESSION which may be drawn from them, is found in the cases NOT RETAINED.-From a decree of the Circuit Court where the conclusions to be drawn are inferences of awarding a fund of $6,000 to one claiming, under a disskill and judgment. Yet it is not claimed that the tinct title, the grantee in a deed of trust to secure witnesses here were especially versed in the matter, to debts to various other persons, exceeding that amount which their attention was directed, nor were they pre- in all, but of less than $5,000 each, may appeal to this sented to the jury as experts. The evidence was incom- court. A judgment duly recovered is not affected, nor petent. Dewitt v. Barley, 17 N. Y. 340; 9 id. 371; Clapp the right to take out execution upon it impaired, by an v. Fullerton, 34 id. 190; O'Brien v. People, 36 id. 276; application made to the court to set it aside, and Real v. People, 42 id. 270; Hewlett v. Wood, 55 id. 634;
"continued until the next term, without prejudice to Rider v. Miller, 86 id. 507. Injustice may have resulted either party.” All the proceedings under a levy of from the evidence adverted to, and in such a case,
execution have relation back to the time of the seizure whether the action is for equitable or legal relief, the of the property. Boyle v. Zachrie, 6 Pet. 648, 659; appeal of the aggrieved party should prevail. Holcomb United States v. Dashiel, 3 Wall. 688; Batdorff v. v. Holcomb. Opinion by Danforth, J. (S. C., 11 W. Focht, 44 Penn. St. 195; Bond v. Willett, 31 N. Y. 102; Dig. 226, reversed.)
Capen v. Doty, 13 Allen, 262. A levy of execution, for [Decided March 21, 1884.]
a debt of the lessee, upon the leasehold estate, and upon a cotton press, with its engine, boilers and ma.
chinery, erected by him, under which the officer has UNITED STATES SUPREME COURT AB
seized the property, and given due notice of the sale STRACT.
thereof, is not defeated by an order from the clerk, under seal of the court, pursuant to a direction of the
judge in vacation, without notice to the judgment APPEAL-AMOUNT IN CONTROVERSY.-The judgment creditor, requesting the officer to return the execution in this case was for $5,237.15, but the record shows
unexecuted; nor by the officers, upon receiving such in many ways that of this amount $727.42 was admit
order, ceasing to keep actual possession of the property ted to be due. Held, that the case was not appealable and returning the execution, with his doings indorsed to this court. Wabash, St. Louis & Pacific Ry. Co. v.
thereon, to the court, for further directions. By the King. Opinion by Waite, C. J.
common law a leasehold interest in land is personal PATENT-INFRINGEMENT-DAMAGES-INTEREST
property. Trade fixtures put up by the lessee, although PROFITS NOT RECOVERABLE.--As a general rule a paten
real estate as between the lessor and himself, while tee is not entitled to interest on profits made by an in
annexed to the land, yet may, during the term of the fringer. The reason is that profits are regarded in the
lease, be severed by the lessee, or by one deriving title light of unliquidated damages (Parks v. Booth, 102 U.
from him, and thus reconverted to their original conS. 106), but in many of the cases it is said that circum
dition of chattels. At any time before the expiration stances may arise in which it would be proper to add
of the term therefore both the leasehold and the fixinterest. Mowry v. Whitney, 14 Wall. 653; Littlefield
tures may be taken on execution against the lessee, v. Perry, 21 id. 230. Illinois Cent. R. Co. v. Torrill.
like other personal property. Dalzell v. Lynch, 4 W. Opinion by Waite, C. J.
& S. 255; Kutter v. Smith, 2 Wall. 491; Van Ness v.
Pacard, 2 Pet. 137; Minshall v. Lloyd, 2 M. & W. 450; ATTACHMENT-DELIVERY BOND-PROPERTY IN CUS- Guthrie v. Jones, 108 Mass. 191. The leasehold interTODIA LEGIS-JUDGMENT DIRECTING SALE-BILL IN est, though personal property, is an interest in land EQUITY AS TO WHO ENTITLED TO FUND.-Property The lessee's interest in the fixtures arises out of the claimed by appellant was attached in a suit against | agreemeut contained in the lease, and of the manuer
and purpose of the annexation to the land, from time be retaken and brougbt into court. To enable which they could not be separated and removed the bail however to escape the payment of their rewithout much labor and expense. It was not neces- cognizance by performing that which the recognisary that the officer should retain actual possession in zance bound them to do, the government will order to keep alive a levy upon such property. Ash- lend them its aid in every proper way, by process and man v. Williams, 8 Pick. 402. The executions have without process, to seize the person of the principal never been legally recalled or set aside. Freeman v. and compel his appearance. This is the kind of subDawson. Opinion by Gray, J.
rogation which exists in criminal cases, namely, subJUDICIAL SALE-TITLE ACQUIRED BY PURCHASER
rogation to the means of enforcing the performance EFFECT OF REVERSAL OF JUDGMENT. —
of the thing which the recoguizance of bail is intended
to secure the performance of, and not subrogation to chased for the sum of $7,400 certain real property in
the peculiar remedies which the government may have New Orleans at a sale upon a decree rendered by the
for collecting the penalty; for this would be to aid the District Court of the United States in proceedings for
bail to get rid of their obligation, and to relieve them its confiscation under the act of July 17,1862, and subse
from the motives to exert themselves in securing the quently obtained a deed of the property from the mar
appearance of the principal. Subrogation to the latsbal. In the writ issued to the marshal and in his
ter remedies would clearly be against public policy by deed of sale, the lots are described as the property of
subverting, as far as it might prove effectual, the very Courad. Under the act of Congress no other interest
object and purpose of the recognizance. It would be than that of Conrad was forfeited, and no other inter
as though the government should say to the bail, “we est was sold. "The plaintiff had notice of the charac
will aid you to get the amount of your recognizance ter and legal effect of the decree of condemnation
from the principal, so that you may be relieved from when be purchased, and is therefore presumed to have
your obligation to surrender him to justice." If payknown that if the alleged offender possessed no estate
ment of the recognizance operated as a satisfaction or in the premises at the time of their seizure, nothing composition of the crime, then the subrogation conpassed to the United States by the decree or to him by
tended for might be free from this objection; for then his purchase.” Burbank v. Conrad, 96 U.S. 291. This
the government would be satisfied in regard to the would be true with reference to any layman who
principal matter intended to be secured. Jones v. might have been the purchaser, but with special force
Orchard, 16 C. B. 614; Chipps v. Hartnall, 4 B. & S. may it be applied to the plaintiff, who, as the district 414; Green v. Cresswell, 10 A. & E. 453. (2) But if the attorney, directed the seizure and conducted the pro- sureties were entitled under the act to the same priceedings to the decree. The title to the property sold ority which the United States have, they are not enunder judicial process is not warranted by the party
titled to use the name of the United States in proseobtaining the judgment of the court. Whatever title cuting their claim. The statute expressly declares the law gives the purchaser takes-no more and no less;
that they must sue in their own names. The reason is and he must govern himself accordingly. Any differ. obvious. The government has many advantages in ent rule prevailing on this subject in Louisiana or any proceeding which are not possessed by individuals, other State by statute cannot change the position of
and is not liable to costs; and individuals prosecuting the United States with respect to judicial sales in pro
claims against other individuals ought not to have the ceedings instituted by them. Nor is this position at
advantage of the name and prestige of the United all affected by the doctrine that upon the reversal of a States. 4 Wash. Cir. Rep. 446. United States v. Ryder. judgment, under which sale has been had, the pur- Opinion by Bradley, J. chaser is entitled to a return of his money. There has
[Decided March 10, 1884.] been no reversal of the judgment in the contiscation proceedings against Conrad. Waples v. United States.
TAXATION-UNITED STATES REVISED STATUTES, SECOpinion by Field, J.
TION 3412—WHAT NOT “NOTE'' WITHIN MEANING OF.[Decided March 3, 1884.]
The act of February 8, 1875, ch. 36, § 19, 18 Stat. 311,
which amends Rev. Stat., $ 3112, is in these words: BAIL BOND-SURETY PAYING RECOGNIZANCE-SUB- “That every person, firm, association, other than NaROGATION — PARTIES PLAINTIFF.— (1) The doctrine tional banking associations, and every corporation, that a surety paying the debt for which he is bound State bank, or State banking association, shall pay a is not only entitled to all the rights and remedies of tax of ten per cent on the amount of their own notes the creditor against the principal for the whole used for circulation and paid out by them.” This act amount, but against the other sureties for their pro- was passed as an amendment to the internal revenue portional part, does not include recognizances in crimi- laws, and is therefore to be construed in connection nal cases. The rule in favor of sureties to the preroga- with those laws. It is also part of the system adopted tive rights seems to be confined to cases of crown by Congress to provide a currency for the country, and debtors, such as collectors, receivers, accountants, and to restrain the circulation of any notes not issued other fiscal officers, and persons bound for customs, under its own authority. Veazie Bank v. Fenno, 8 duties, excise, taxes and other civil duties. We have Wall. 533. Defendant used for circulation and paid not been able to find any English case in which it has out their own obligations agreeing to “pay David 0. been applied, or allowed, in favor of bail in a criminal Calder, or bearer, five dollars in merchandise at retail.” proceeding. The object of bail in civil cases is, either | Held, that such instrument was not a “note" within directly or indirectly, to secure the payment of a debt the meaning of said act. Only such notes as are in or other civil duty; whilst the object of bail in crimi- law negotiable, so as to carry title in their circulation nal cases is to seoure the appearance of the principal from hand to hand, are the subjects of taxation under before the court for the purposes of public justice. the statute. It was, no doubt, the purpose of ConPayment by the bail in a civil case discharges the ob- gress, in imposing this tax, to provide against competiligation of the principal to his creditor, and is only re- tion with the established National currency for circuquired to the extent of that obligation, whatever may lation as money, but as it was not likely that obligabe the penalty of the bond or recognizance; whilst tions payable in any thing else than money would pass payment by the bail of their recognizance in criminal beyond a limited neighborhood, no attention was cases, though it discharges the bail, does not discharge given to such issues as affecting the volume of the curthe obligation of the principal to appear in court; that rency, or its circulating value. This was the principle obligation still remains, and the principal may at any on which the case of United States v. Van Auken, 96
U. S. 366, was decided, from which we see no reason to bankruptcy against any person claiming an adverse indepart. Judgment affirmed. Pollister v. Mercantile terest, or by any such person, against an assignee, Institution. Opinion by Waite, C. J.
touching any property or rights of the bankrupt trans[Decided March 17, 1884.]
ferable to or vested in such assignee." By this section jurisdiction is conferred upon the Circuit Courts to
ascertain and adjust all liens and other specific claims UNITED STATES CIRCUIT COURT AB- upon the property vested in the assignee, claimed by STRACT.*
any person adversely to the assignee as representing
the general creditors, without regard to the citizenREMOVAL OF CAUSE-CITIZENSHIP WHEN SUIT BE
ship of the parties. This has been settled by repeated GUN.- Where a case is removed under Revised Stat- decisions of the Supreme Court. Smith v. Mason, 14 utes, section 639, subdivision 3, the requisite diversity Wall. 419; Marshall v. Knox, 16 id. 551; Lathrop v. of citizenship must exist both when the suit is begun Drake, 91 U. S. 516; Eyster v. Gaff, id. 521; Burbank and when the petition for removal is filed. Gibson vi
v. Bigelow, 92 id. 179; Dudley V. Easton, 104 id. 103. Bruce, 2 Sup. Ct. Rep. 873. Frelinghuysen v. Baldwin. This case comes within the very letter of the statute. Cir. Ct., S. D. N. Y., January, 1884. Opinion by Wal- The plaintiff sets up and seeks to enforce against a lace, J.
part of the railroad which was transferred to the as
signees, by virtue of their assigoment, a lieu alleged REMOVAL OF CAUSE-PROCEEDING SUPPLEMENTAL
to have been created, under the laws of Rhode Island CANNOT BE REMOVED-MINNESOTA STATUTE.-A bill
and Connecticut, by the issue of preferred stock. That in equity may be filed to set aside a fraudulent con
this court has jurisdiction to determine its validity, veyance for the purpose of collecting an amount due
and if found valid to enforce it against the property, is by a judgment in the State court, and that cause of action may be transferred to the Circuit Court of the
clear. Nor is the jurisdiction affected by the change United States; but when the action is brought for the order of the District Court. Having once acquired
of interest created by the conveyance made under the purpose of enforcing a judgment in the State court; the jurisdiction of the subjeot-matter and the parties, whatever the form of the proceedings may be, it is
the court will retain it for all purposes within the auxiliary in its character, and cannot be removed, and
Ober v. Galla
scope of the equities to be enforced. we think that the rulings which have been announced iu previous cases in other districts applicable to the gher, 93 U. S. 199; Ward v. Todd, 103 id. 327. The proceedings now before us under the statutes of Minne- conveyance to the New York and New England Railsota, and that it is in substance and in effect a garnishee which can be enforced against the road in this suit,
road Company was made expressly subject to any lien proceeding, and it cannot be maintained as an independent suit, but only as a part of the original suit
and the case must therefore proceed as if no such conagainst the original defendant. If the original judg- veyance had been made. Ordinarily a bill of revivor ment cannot be brought here we can have no jurisdic- may be filed at any time before it is barred by the stat
ute of limitations, which, when the suit is abated by the tion in the supplemental proceeding. One reason is that if a judgment were removed and the money col- death of the plaintiff, begins to run from his decease, lected upon that supplemental proceeding, the court
or according to some authorities, from the time the would be called upon to direct the application for the administration is taken out. But where one acquires payment of the original judgment; it might be that of a lien, he cannot charge laches on the part of the
title with full notice, and subject to an incumbrance upon this proceeding the judgment might be for more than the original judgment, if is was a separate pro- brought within the time prescribed by the statute.
person bringing suit to enforce the lien if the suit is ceeding conducted without any reference to the origi- Cir. Ct., Mass., January, 1884. Mason v. Hartford. nal case at all. At all events it is brought, we think, Opinion by Nelson, J. for the purpose of enforcing the payment of a judgment in the State court, and as that judgment is not
DEED-ACKNOWLEDGMENT-AFTER AUTHORITY REbefore us we cannot take jurisdiction of the supple
VOKED-BOUNDARIES--LOSS OF PLAT.-(1) A deed exmental proceeding. These views, we think, are sup-ecuted by a commission empowered to convey public ported by the following cases: Pratt v. Albright, 9 land was ackuowledged by one of the commissioners Fed. Rep. 634; Weeks v. Billings, 55 N. H. 371; Chap- after their authority had been revoked. Held, that the man v. Bargar, 4 Dill. 557; Bank v. Turnbull, 16 Wall.
deeds were not rendered invalid thereby. A deed in 190; Barrow v. Hunton, 99 U. S. 80; Buford v. Stro- New Hampshire is good, without acknowledgment, ther, 10 Fed. Rep. 406. The statutes under considera- against purchasers with notice. Montgomery v. Dotion in those cases were not always exactly the same as the statute of this State, but we think they were in their deed of reconveyauce, the proprietors of Sargent
rion, 6 N. H. 250; Wark v. Willard, 13 id. 389; and by substance the same. Cir. Ct., Minn., December, 1883.
& Elkins' grant acknowledged notice of all preceding Poole v. Thatcher. Opinion by McCrary, J.
deeds. Independently of notice, the formal act of acREMOVAL OF CAUSE-AMENDMENT BY STATE COURT knowledgment could be done after the commission AFTER-JURISDICTION. After the filing of a petition had expired. See Lemington v. Stevens, 48 Vt. 38, for the removal of a cause to a Federal court, and the and for cases somewhat analogous: Bishop v. Cone, s tender of a valid bond, if the petition and record show N. H. 513; Gibson v. Bailey, 9 id. 168; Welsh v. Joy, 13 good ground for removal, the jurisdiction of the State Pick. 477; Fogg v. Willcutt, 1 Cush. 300. (2) A valid deed court is superseded, and an amendment of the proceed does not become void, because by reason of the loss of ings subsequently allowed in the State court is invalid. a plat referred to therein, it has become difficult to Railroad Co.v. Mississippi, 102 U. S. 241. Cir. Ct., Ky., define the boundaries. Corbett v. Norcross, 35 N. H. January, 1884. Wellman v. Howland. Opinion by 99; Browne v. Arbunkle, 1 Wash. C. C. 484; Jones v. Burr, J.
Johnston, 18 How. 150, 154; Wells v. Iron Co., 47 N. A. JURISDICTION-DISTRICT AND CIRCUIT COURTS CON
235, 259. New Hampshire v. Tilion. Cir. Ct., N. H. CURRENT--REVIVOR-LACHES.-By section 4979 of the Opinion by Lowell, J. Revised Statutes the several Circuit Courts have con- [Decided January, 1884.] current jurisdiction with the District Courts" of all
CARRIER-GOODS DESTROYED BY FIRE ON WHARFsuits at law or in equity brought by an assignee in
PROXIMATE CAUSE.-Goods were delivered to the de* Appearing in 19 Federal Reporter.
fendant, a steamboat company, for transportation.
The bills of lading did not designate any particular It is the mere act of the mortgagee, who cannot make vessel. The goods were burned on the wharf by a fire that good and effectual by a sale which was unlawful not occurring through any neglect of the defendant. and void in its inception.” Id. 443. Hyland v. StafHeld, that where goods in the custody of a carrier are ford, 10 Barb. 558; Bissell v. Kellogg, 60 id. 628; Wardestroyed by storms, floods or fire, in a place in which ner v. Blakeman, 4 Abb. Ct. App. Dec. 530; Lee v. they would not have been but for the negligent delay Peckham, 17 Wis. 391. In Taylor v. Burgess, 26 Minn. of the carrier, the direct or proximate cause of 548; S. C., 6 N. W. Rep. 350, under the statute then in the injury is the flood or the fire, and that the delay in force, the mortgage security was not invalid, aud the transportation is only the remote cause. The Supreme foreclosure was not therefore void. And in Merchant Court of the United States so decided in Railroad Co. v. Woods, 27 Minn. 396; S. C., 7 N. W. Rep., 826, a v. Reeves, 10 Wall. 190, and it was so held in the Su- mortgage which had been paid ap was suffered to repreme Court of Massachusetts in Hoadley v. Northern main undischarged of record by the mortgagor or his Transp. Co., 115 Mass. 304. This latter case was a suit assigns, and an innocent purchaser bid in the premises to recover for the loss of goods by fire, which the car- upon foreclosure. (3) A bonus taken by agents for rier had delayed forwarding, and which were burned their own benefit, and without any collusion with the at the place where they were delivered into his cus- lender,who neither authorizes nor ratifies the act or detody. The bill of lading in that case exempted the rives any benefit from it, is not presumptively a cover carrier from liability for loss from fire while the goods for usury on his part, and does not make the loan usuwere in transit, or while in depots or warehouses or rious. And receiving the mortgage and attempting to places of transhipment. It was held that the destruc- enforce it for the amount actually loaned, with lawful tion of the goods by fire could not reasonably have interest, does not amount to a ratification. And this been anticipated as a consequence of the detention;
appears vow to be the prevailing doctrine. Acheson that the delay did not destroy the goods; and that v. Chase, 28 Minn. 214; S. C., 9 N. W. Rep. 734, there was no connection between the fire and the de
and cases cited; 1 Jones, Mortg., $ 642; Van Wyck v. tention. The language of the bill of lading is: “And
Walters, 16 Hun, 209; S. C., 81 N. Y. 352; Ins. Co. v. it is expressly contracted and agreed that loss or dam
Kashaw, 66 id. 544; Gray v. Van Blarsom, 29 N. J. Eq. age by weather, fire, leakage, breakage and dangers of 454; Gokey v. Knapp, 44 Iowa, 32; Eslava v. Crampthe seas are excepted;" and it seems to me it would be
ton, 61 Ala. 507; Phillipe v. Roberts, 90 Ill. 492; Roga very strained and forced construction of these con
ers v. Buckingham, 33 Conn. 81. Where the authority tracts now before me to hold that the exemptions in
of the agent is special and limited, and nothing furthem from “fire, leakage and breakage" do not apply to ther can be inferred in this case, the relation of the losses from those risks while on the wharf, because they
parties cannot be presumed to authorize illegal exacare mentioned in the same sentences with other risks,
tions of a bonus by an agent, and such act is not therewbich are only encountered on the voyage itself. See fore to be deemed within the scope of his agency. 3 Wall. 107; Rev. Stat., 8 4282. Scott v. Baltimore. Cir.
Whart. Neg., $ 161 ; Acheson v. Chase, supra; Sniffen Ct., Md. Opinion by Morris, J.
v. Koechling, 45 N. Y. Sup. Ct. 64. Jordan v. Hum[Decided January 15, 1884.]
phrey. Opiniou by Vanderburgh, J.
[Decided Feb. 12, 1884.] MINNESOTA SUPREME COURT ABSTRACT. VERDICT-JUDGE ENTERING JURY-ROOM--WHEN NOT
CAUSE FOR SETTING ASIDE.- After the jury bad retired, BROKER-COMMISSION.—The rule is that to entitle
the justice who tried the cause temporarily entered the one to commissions for procuring a purchaser of prop
jury-room without the consent of the parties. Held,
that such conduct on the part of the court or its offierty on specified terms he must produce a person ready and willing to purchase on those terms. Wylie
cers is not to be encouraged or approved. Oswald v. v. Marine Nat. Bank, 61 N. Y., 415; Sibbald v. Bethle
Railroad Co., 29 Minn. 6; S. C., 11 N. W. Rep. 112, hem Iron Co., 83 id. 378; 38 Am. Rep. 441. Hamlin
modified the stringent rule as laid down in Hoberg v. v. Schulte. Opinion by Berry, J.
State, 3 Minn. 269 (Gil. 181). In this case the intrusion [Decided Feb. 5, 1884.]
was but temporary, and apparently casual, and there
is no reason to believe that any prejudice was caused JUDICIAL SALE-SECURITY VOID FOR USURY-ESTOP- to the defendant's rights. The prevailing party ought PEL-NEW SECURITY SUBSTITUTED—AGENT TAKING not therefore to be punished by setting aside a verdict BONUS-WHAT NOT RATIFICATION-PRESUMPTION.- for the inadvertent act or irregular conduct of an offi(1) The effect of the statute is not avoided by the sub- cer or other person with whom he is in nowise constitution of a new security for one infected with usury. nected unless there is good cause for believing that the Austin v. Burgess, 36 Wis. 192; Lee v. Peckham, 14 id. opposite party is injured. People v. Draper, 28 Han, 383; Williams v. Fitzhugh, 37 N. Y. 446, and cases 6; People v. Hartung, 4 Parker, 256; 3 Wait's Law & cited; Tyler, Usury, 395. (2) The general rule is that Pr. 738. Helmbrech v. Helmbrech. Opinion by Vanwhere the debtor suffers the property pledged or mort- derburgh, J. gaged to be regularly sold to an innocent purchaser, he [Decided Feb. 13, 1884. ] will not be permitted to question the validity of the sale on the ground that the original security is infected with usury. This doctrine may be supported
CORRESPONDENCE. upon the principle of equitable estoppel, as well as apon grounds of public policy. Cuthbert v. Haley, 8
Gowns. Term R. 390; Jackson v. Henry, 10 Johns. 195; 1 Jones, Mort., $ 646; Mumford v. Ins. Co., 4 N. Y 485. Editor of the Albany Law Journal: But as to the creditor or an assignee not bona fide, a When we reflect that the example of the wearing of 1oreclosure sale made under a power contained in a gowns by our judges may be followed in all the other void mortgage, or one that has been fully paid, works States, the matter is seen to be one of sufficient imno estoppel against the mortgagor, and in such case portance to demand the fullest consideration. As yet the purchaser is in no better position than if no sale it cannot, we think, be said that the practice is apwere made. Jackson v. Dominick, 14 Johns. 442. “A proved of in this State, even by its bar, much less by foreclosure of a mortgage under the statute is not the people. It is true the Bar Association of the city founded upon any judgment or decree of any court. of New York (and subsequently, we believe, the State
Association also) passed resolutions requesting the system of self government, through discussion undue Court of Appeals to adopt the fashion, and very likely exaltation of the judicial office, and the consequent this was quite sufficient justification to the judges in incidental but imperceptible and undefined extension doing so; but only as we think ou the assumption that of its power and authority, is a real and ever present the persons voting truly represented their brethren danger, and the purchase of "dignity" at too great a and the people. The wish of the people on the sub cost. There is no branch of government in which it is ject would likely be better indicated by the tone of so essential that discussiou should be full, free, and the press (of which we have not sufficient knowledge unawed, and decision impartial, unbiased and just, as to speak), than by so small a representation of the here. When government fails in this branch, through lawyers of the State-perhaps not one-tenth-as voted the imperiousness, conceit, artificial or natural exaltafor those resolutions, and in any event we believe that tion and extension of their office, or ignorance for upon fuller consideration an indorsement of the prac-want of sufficient discussion, or patience to listen to tice would be withdrawn. Some of the reasons for this it, of the judges, the government has failed in some belief are as follows:
degree to be aid, and become instead an obstacle to First. Gowns are emblems of either secular or spir- the freedom, progress and happiness of the people itual authority, and in either case are out of place, in a “Judges are but men," says Jefferson, “they are as purely secular system of government by the people honest as other men and not more so. They are liable governed, which is essentially a government of reason to be misled by favoritism, relationship, devotion to arising out of discussion, and from which the intoler- legislative or executive power,esprit de corps." And in ance, bigotry, and tyranny of ancient beliefs, customs, another place he points out that they are ever inclined sects, and parties is removed. Undoubtedly gowns to unduly enlarge their jurisdiction and extend their were originally, and not improperly in matters relat- power. Works, vol. 1, p. 81. Any exaltation of the ing to existence in a future world, emblems of religion judges above the people beyond that incidental to the or spiritual authority. They are suited to the office power and mysteries of their office is to be depreof a priest, and were worn by them as well when sit- cated. Agents of the people with us to have due reting as judges in the ecclesiastical courts as at other spect, but no sacredness. Beyond the elevation incitimes, and they may be useful as either spiritual or dent to their high and honorable office they must be secular emblems,or both under a monarchial or Divine content, like other people with less opportunities, with right theory of government, in which church and State such consideration or otherwise as may come from are united. Where such is the case, and especially qualities and works. If similarly to Chief Justice where the people are ignorant, superstitious, turbu- Marshall they shall iu disposition of private controlent, or cowed, the emblem might in the courts of the versies be able to discover true principles, and make a king, the supposed fountain of justice, well serve a true application of them in so able, clear, and condouble and useful purpose in aid at once of secular vincing a manner as to settle the particular litigation and religious authority, where the maintenance of to the satisfaction of the parties, and prevent much some such authority is of more consequence than the litigation in the future, and conserve and advance particular nature of it. In this age and country the public and private morality, liberty and progress, they conditions are entirely different. There is here no will have their reward. And if on the other hand acoccasion for emblems in secular matters, at least, tive or uncouscious, personal, or party bias and interwhere the people are intelligent and free, and can est, forgetfulness of their relation and obligation to duly respect the laws which they themselves adopt and the whole people, and the possible effect upon their make, and the judicial and other agents whom they liberty and highest welfare of the disposition of a pri themselves appoint to interpret and enforce those laws / vate controversy, devotion or surrender to each other, equally upon themselves, and all for the good of all, pride of power and opinion, the frailty of human naand generally can judge of and respect men for their ture, etc., shall cause them to deal erroneously, un. qualities and works rather than by reason of any ac- justly or unlawfully, and to settle controversies, which cidental circumstance or material surrounding; and can never be settled, on any basis not plainly seen to where, as here, religion is separated from the State, be lawful, just, and right, and so be the cause of puband neither the right of government or rule of gov- lic and private immorality, unrest, and suffering, to 'ernment comes from outside and above by usurpation the prejudice of order and liberty, they will also have or supposed appoiutment to or through one or the few, their reward, and gowns cannot serve the judges or to be impressed, willing or unwilling, upon the many, the people to hasten or prevent such results in the but instead is found in and arises out of the united least degree. action and most numerous agreement of the duly ma- As to the wearing of gowns by the judges of the tured and normally acting consciences and intellects United States Supreme Court, that practice, with our of the many; and where as here judges not being the General Terms, and a few similar anomalies, is what agents of a kingly or spiritual potentate as such, or is remaining in our courts of a judicial system estabotherwise than as found in the minds of men in gen- lished under and suited to an entirely antagonistio eral, they are in no measure properly separated from system of government, but which our forefathers did the people for whom and by whose authority they act not think it necessary or wise to do away with or except while in the actual exercise of their office, and, change wholly and at once. Uuder the principles of only to an extent necessarily incident to such exercise, our system, it is however only a question of time, as or as the people by express grant and for a limited we believe, when gowus, like the system of courts time have entrusted them with. The use of a gown within a court, and the regarding of appeal as matter therefore or other distinguishing insignia, could with of favor rather than right, appointment of judges, etc., us only be proper for the purpose of separating to the will bave disappeared wholly, and then we may have sight judicial agents from their fellow citizens in gen- the satisfaction of seeing the judges of the highest eral or particular, as they are now already while in court in the world sitting not in priests' gowns, or in a the exercise, and otherwise to some extent by the na- uniform of any kind, but in the dark, well made, well ture of their office, but the gown is the distinguishing fitting, dress of the prosperous, studious, and influeninsignia of the priest and spiritual authority. Such tial American citizen, and doing a work of which the separation tends to the undue magnifying of judicial world will be proud. The movement for gowns in office, both in the minds of those so separated and of this State, originated in the city of New York, and is those from whom they are so separated. Under a, one of the numerous circumstances that tend to con