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sponsible as a trespasser as he who commits the one in shooting at another's fowls, in mere wanton trespass. Jordan v. Wyatt, 4 Gratt. 156. And al- sport, kills a human being. Id. 255. though the act committed was done without mal- In Rex v. Conrahy, 2 Crawf. & Dix, 86, the prisice, yet being unlawful, the party committing it, or oner and the deceased had been piling turf together, aiding or abetting in its commission, is responsible and the former, in sport, threw a piece of turf at in damages to the party injured. Parsons v. Har- the latter, hitting and killing him. Held, no crime. per, 16 Gratt. 64.” As the plaintiff got a verdict for In Rex v. Waters, 6 C. & P. 328, there was testimony $8,000, this was better than a criminal prosecution. that the prisoner, in the course of rough and drunken But the same practical joke would have been crimi- joking, pushed a boat with his foot, whereby the nal.

deceased fell overboard and was drowned. There Thus, in Fenton's case, 1 Lewin C. C. 179, where was also testimony that the push was given by anthe prisoners, in sport, threw heavy stones into a other person. Park, J., said, “if the case had mine, breaking a scaffold, which fell against and rested on the evidence of the first witness it would upset a corf, in which a miner was descending into not have amounted to manslaughter," and there the mine, whereby he was killed, they were held must be an acquittal. In Ann v. State, 11 Humph. guilty of manslaughter. Tindal, C. J., said: “In 159, an indictment of a nurse for murder of an inthe present instance the act was one of mere wan- fant by administering laudanum, a charge that if tonness and sport, but still the act was wrongful, it the drug was administered to produce unnecessary was a trespass. The only question, therefore, is, sleep, and contrary to expectation it produced whether the death of the party is to be fairly and death, this would be murder, was held errroneous. reasonably considered as a consequence of such In State v. Hardie, 47 Iowa, 647; S. C., 29 Am. wrongful act; if it followed from such wrongful act, Rep. 496, the defendant was held guilty of manas an effect from a cause, the offense is man- slaughter for killing a woman in an attempt to slaughter; if it is altogether unconnected with it, frighten her with a pistol which he supposed to be it is accidental death.” The prisoners were sen- unloaded. The court said: “If it had been in fact tenced to three months' imprisonment. In Rex v. unloaded no homicide would have resulted, but the Powell, 7 C. & P. 641, a lad, as a frolic, without any defendant would have been justly censurable for a intent to harm any one, took the trap-stick out of most reckless and imprudent act in frightening a the front part of a cart, in consequence of which it woman, by pretending that it was loaded, and that was upset, and the carman who was in it, load he was about to discharge it at her.”

"Such coning it, was pitched backward on the stones and duct is grossly reckless and reprehensible, and withkilled. Held, manslaughter. The prisoner was fined out palliation or excuse. Human life is not to be one shilling and discharged. In Ewington's case, 2 sported with by the use of fire-arms, even though Lewin C. C. 217, the prisoners covered and sur- the person using them may have good reason to berounded a drunken man with straw, and threw a lieve that the weapon used is not loaded, or that shovel of hot cinders upon his belly, whereby he being loaded it will do no injury. When persons was burned to death. Paterson, J., charged that engage in such reckless sport they should be held “if they believed the prisoners really intended to liable for the consequences of their acts.” do any serious injury to the deceased, though not But it would have been no crime if both persons to kill him, it was murder; but if they believed bad supposed the pistol to be unloaded. Robertson their intention to have been only to frighten him in v. State, 2 Lea. 239; 8. C., 31 Am. Rep. 602. The sport, it was manslaughter.” Verdict, manslaughter.court, however, admit that the prisoner would In State v. Roane, 2 Dev. 58, the defendant care- have been responsible if the act had amounted lessly discharged a gun, intending only to frighten to an assault, under the circumstances of the Iowa a supposed trespasser, really the servant of the prisoner, but killing him. Held, manslaughter. This case, although cited by Wharton under “practical

LIMITED LIABILITY OF SHIP-OWNERS. jokes," does not answer that description; as also the

II. case cited in 1 East's P. C. 236, where the prisoner ducked a thief, who had picked his pocket, and ac

The vice-chancellor concluded that the part of the

statute which relates to the liability of British owners cidentally drowned him. In Rex v. Martin, 3 C. &

was intended to operate, even as against foreigners, P. 211, the prisoner ordered a quartern of gin to throughout that portion of the sea which lies within drink, and asked a child present if he would have three miles of the coast, and that the plaintiffs were a drop, at the same time putting the glass to the therefore entitled to the relief sought. child's mouth, whereupon the child snatched the

After the decisious the act of Parliament was amended

in 1862 by act 25 and 26 Vict., ch. 63, sec. 54, as already glass and drank the whole contents, which caused

stated, so as to give the benefit of the limited liability his death. Vaughan, B., said, as this was the act under section 504 of the original act to "the owners of of the child, there must be an acquittal, “but if it any ship, whether British or foreign. had appeared that the prisoner had willingly given Subsequently the question directly aroso whether, a child of this tender age a quartern of gin, out of

under the act, the owners of a British ship could claim a sort of brutal fån, and had thereby caused its

a limited liability in case of damage done to a Belgian

ship in the Mediterranean, and beyond British terrideath, I should, most decidedly, have held that to

torial jurisdiction, in 1863. The Amalia, 1 Moore's P. be manslaughter.” Giving one physic, in sport, if C. C. (N. S.) 471. fatal, is manslaughter. 1 East's P. C. 264. So, if Dr. Lushington said: “The cases under the law prior


to 1862 are valuable as illustrations, but they are not II, The act did not limit the liability of a foreigner precedents. Now I have always recognized the full in case of damage by tort to a British vessel or subject force of this objection, that the British Parliament on the high seas, and it made no difference if a limited has no proper authority to legislate for foreigners out liability was allowed to British subjects, under the of its jurisdiction. No statute ought therefore to be same circumstances in the foreign courts. held to apply to foreigners with respect to transactions III. It was left undecided whether the act limited out of British jurisdiction, unless the words of the the liability of a foreigner in case of damage by tort to statute are perfectly clear; but I never said that if it a British or foreign vessel within the three-mile pleased the British Parliament to make such laws as to limit. foreigners out of the jurisdiction, courts of jus- IV. The act did not limit the liability of a British tice must not execute them; indeed, I said the direct subject in a case of damage by tort to a foreigner or contrary, speaking of the Instance Court of Admi- | foreign vessel on the high seas beyond the three-mile ralty, reserving any particular considerations that

limit. might attach to the Prize Court.

V. But it did limit the liability of a British subject “Now, fully recognizing the prima facie force of in a case of damage by tort to a foreigner or foreign this objection, I do not think it is removed by the vessel within the three-mile limit. ingenious suggestion that this limited liability is a part VI. In a case of damage by the tort of a foreigner of the proceedings, and a part of the lex fori.

or foreign vessel to another foreigner or foreign vessel “But however this may be, if the statute in question of the same country, the British courts would, on due gives the right of limited liability to the British owner proof, apply and enforce a law of that country limiting and the foreign ship-owner alike, if there be perfect the liability of the tort-feasor. reciprocity, then complete justice is done, and the But when Parliament, in clear and precise language, former objection that it was unjust to give relief to declared that the limitation of liability should extend the British owner, when a similar relief was denied to to foreign as well as British ships, the courts were the foreigner, is removed."

bound to obey the law in all cases submitted to them After an examination of the statute and in view of for adjudication. the fact that the large majority of collisions occur on The only reported case found in this country on the the high seas, he came to the conclusion that the act application of the act of Congress to foreign vessels was intended to operate for and against both British was before Judge Shipman in the United States Cirand foreign vessels in all places, whenever their mutual cuit Court for the Southern District of New York, in rights and liabilities should come before a British court 1876. Levinson v. The Oceanic Steam Navigation Co., for adjudication.

17 Alb. L. J. 285. The opinion seems to have been An appeal was taken to the Privy Council, where the given at nisi prius. decision of Dr. Lushington was affirmed, Lord Chelms- The action was at common law for personal injuries ford delivering the opinion.

to the plaintiff and loss of baggage. The plaintiff was He said that section 504 of the original act of 1854 a resident of New York; whether he was a citizen clearly applied only to British ships. He then briefly does not appear. The defendant was a foreign corporeviewed the decisions under that section, noticing the ration, and it pleaded in bar, proceedings under the fact that all the questions which could arise in cases of act of 1851, in exoneration of further liability. collisions between British and foreign ships, in which Judge Shipman said that the statute of 1851 seemed the British ship was in fault, had been decided under to him to have been a limitation of the common-law that section, except the case now in question; “but liability of common carriers by sea. “The statute against the right of the British owner in such a case which was passed was the adoption by legislative auto a limitation of his liability, very strong observations thority of a new principle of law, so far as this country had been made by Vice-Chancellor Wood in Cope v. is concerned, but one which has been the rule in the Doherty, which his honor repeated in the General Iron admiralty courts of foreign countries. Screw Colliery Co. v. Schurmanns.

“The question then is, whether this limitation of the “In this state of the decisions, the · Merchant Ship- liability of common carriers by sea applies only to ping Act Amendment Act, 1862,' passed, and instead American vessels, and was merely a municipal regulaof the words, no owner of any sea-going ship,' in the tion, or whether it was the adoption of a general prin504th section of the original act, introduced the words ciple. in the 54th section, upon which all the difficulty has “Now neither from the statute of 1851, nor upon arisen, viz. : 'the owners of any ship, whether British principle, can I see that this limitation of liability was or foreign.'

local, or that the legislation was municipal. He considered that the intention of the Legislature, "There was nothing local or municipal in its charso far as it could be collected from the language em- | acter. The statute was not in terms confined to ployed, seemed to be, to place British and foreign ships American vessels. It had a wider scope, and was a ou the same footing. With respect to the objection modification by legislative enactment of the common that such legislation would restrict "the common law in regard to a subject over which Congress had natural rights of foreigners," he said: “What breach jurisdiction. of international law, or interference with the natural “If a modification of the common-law liabilities of rights of foreigners is produced by the Legislature say- carriers by land was provided by the statute of the ing that all suitors having recourse to our courts, to State that had jurisdiction over such corporations, it obtain damages for an injury from a person not actu- would have been binding upon all the courts of the ally in fault, but being responsible for the acts of his State; it would have been the lex fori, the modificaservant, shall recover only to the value of the thing by tion would have been a general one, and when an which the loss or damage was occasioned, estimated in action was brought before a court of the State, the a particular manner?"

court would have been prohibited from exceeding the The results of the English cases may be summed up liabilities which the Legislature of the State had in the following propositions, applicable when the act limited. made no express mention of foreign vessels or foreign “So, this statute being a modification of the common Owners:

law of a general and universal character, it is binding I. The act did not limit the liability of a foreigner, upon all the courts in this country, and they are limin case of damage by tort to a foreigner or foreign ves- ited or restrained from proceeding to give judgment sel, on the high seas, although the injured party com- beyond the limit of liability which the Legislature had menced proceedings for redress in a British court. prescribed in 1851. In other words, the adoption of a principle of admiralty law cannot be considered as to be withdrawn from the limitation of the liability merely local or municipal legislation."

of the owner; and the addition of the term “inland This decision seems to be in conflict with Proposi- navigation,” as an alternative to rivers, was doubtless tions I and II, above. So far as it proceeds on the designed, speaking in a general sense, to embrace all ground that the lex fori applies, it is opposed to the internal waters, either connected with rivers, but express opinion of Vice-Chancellor Wood, Lord Jus- which did not, in a geograpbical or popular sense, fall tice Turner, and Dr. Lushington, and to the necessary under that name, or which might not be connected implication in all the cases where relief was refused to with rivers, but fell within the reason or policy or against foreigners.

of the exception, such as bays, inlets, straits, etc. Iu determining the cases to which the United States Vessels, whatever may be their class or description statute applies, it must be constantly borne in mind solely employed upon these waters, are usually emthat Congress has not the omnipotence of legislation ployed in the trade and traffic of the localities, carried conceded to the British Parliament by the British on chiefly by persons residing upon their borders, and courts. Its constitutional power over the subject connected with the local business, and without the under consideration rests on the power given “ to formalities and precautions observed in regular comregulate commerce with foreign nations, and among mercial pursuits with a view to guard against accidents the several States." The act can apply only to vessels and losses, such as insurance, bills of lading, eto. It which are engaged in such commerce. Per Neilson, was fit and proper, therefore, in this description of J., 24 How. (U. S.) 39.

trade and traffic that the common-law liabilities of the The question has been raised whether the owners of carrier should remain unaltered. a steam vessel plying between several ports of the But the business upon the great lakes lying upon our same State, carrying merchandise and passengers northern frontiers, carried on between the States and partly in transit to foreign countries and between dif- with the foreign nations with which they are conferent States of the Union, and partly in transit only nected (and this is the only business which Congress between the termini of the vessel's route, can have can regulate), is of a very different character. They the benefit of the act, as against passengers and the form a boundary between a foreign country and the owners of merchandise of the latter description. It United States for hundreds of miles, and considering has been held by Circuit Judge Sawyer, in the District their great size, the magnitude of their commerce, and of California, that the act applies to such a case. Lord the well-known perils incident to lake navigation, v. Goodall, etc., S. S. Co., 4 Sawy. 298.

Congress could not have classed it with inland navigaThe argument is that, within the decision in Thetion, but would have used a more specific designation Daniel Ball, 10 Wall. 565, the vessel was engaged in if it was to be excluded from the limitation of liabilboth inter-State and foreign commerce; that Congress ity. Besides, the decision in the case of the Lexington, has, by acts of 1838 and 1852, imposed onerous regu- burned upon Long Island Sound, led to this act of lations on owners of steam vessels for the safety of 1851, and the act was designed to promote the building merchandise and passengers, to which regulations this of ships and to encourage persons engaged in the busivessel was subject, and the act of 1851 may fairly be ness of navigation. considered a counterpoise for the benefit of the own- For these reasons it is held that the owner of a vessel crs; that upon the whole, the security afforded by the plying between Buffalo and Detroit, on the great lakes, provisions of the statute, if properly enforced, not- is not within the exception of section 4289, but is entiwithstanding the limitation of liability, is greater tled to the benefit of the act. Moore v. American than it would be under the full common-law liability Transportation Co., 24 How. 1; Chisholm v. Northof owners without the security provided by Congress. ern Transportation Co., 61 Barb. 363. Any party using the vessel for the purposes of domes- And the owner of a tug towing a boat from the New tic commerce enjoys all the benefits afforded by the York to the Canadian shore of the St. Lawrence is enregulations prescribed, for they inhere in the vessel, titled to the benefit of the act. Baird v. Daly, 4 Laus. and cannot be separated from it. If a party avails 426 (reversed on other grounds, 57 N. Y. 236). himself of those benefits, by the use of the vessel, he So is the owner of a vessel navigating Long Island must also suffer the inconveniences incident to such Sound between two ports in different States, although use. It would be impracticable for two sovereignties the loss is caused by a fire at dock. Knowlton v. Prov. to regulate the same instrument used at the same time & N. Y. S. S. Co., 1 Jones & Sp. 370. See, also, Headin different branches of commerce. The regulation as rick v. Va. & Tenn. Air Line R. W. Co., 48 Ga. 545. to all must necessarily fall to that sovereignty which But the owner of a vessel plying on the Mississippi is supreme or paramount as to any part, and having river, although between two termini in different control of the instrument employed. The power to States, is within the very words of the exception, and prescribe the conditions upon which the vessel shall be is not entitled to the benefit of the act. The War employed as an instrument of inter-State or foreign Eagle, 6 Biss. 354. commerce necessarily carries with it the power to There is another limitation of the class of persous modify the rights of those who use it - as well those entitled to the benefit of the act. They must be the who at the same time make use of it for the purposes owners or charterers who man, victual and navigate of domestic commerce, as those who employ it in inter- the vessel at their own expense or by their own proState or foreign commerce.

curement. $$ 4282, 4283, 4286. “Owners of any canal boat, barge or lighter, and Accordingly, where a carrier in the course of transany vessel of any description whatsoever, used in riv- portation pursuant to his contract places the merchaners or inland navigation,” are expressly excluded from dise on a vessel which he neither owns nor charters, the benefits of the United States Statute. Rev. Stats., and while on board such vessel goods are lost or dam$ 4289.

aged in the manner specified in the act, he is liable to The connection in which this term “inland naviga- the full extent of the loss, and cannot claim the benefit tion” is used in the act has been considered as throw- of the statute. Rice v. Ontario Steamboat Co., 56 Barb. ing some light upon the intent of the law-makers, and 384 ; Hill Mfg. Co. v. Boston & Lowell R. R. Corp., 104 as indicating to some extent the class of vessels in Mass. 122. their mind. The word used means in this connection But of course a railroad company owning a vessel is employed, and doubtless in the mind of Congress was entitled to the benefit of the act equally with any intended to refer to vessels solely employed in rivers other corporation or individual. London & S. W. R. or inland navigation. It was this species of naviga- W. Co. V. James, L. R., 8 Ch. App. 241; Headrick v. tion, that is, on rivers and inland, which was intended Va. & Tenn. Air Line R. W. Co., 48 Ga. 545.

Section 4.282 in terms applies only in case of fire hap- should prosecute him, to their proportionate share of pening “to or on board the vessel.” Therefore the the value of the vessel and freight ($ 4284), and at ship-owner is not protected by that section if goods be the same time retain tho balance without paying the destroyed by fire on a lighter conveying them from other injured parties. Besides, it is necessary that the shore to the ship. Morewood v. Pollock, 1 Ell. & the total amount of losses should be ascertained in Bl. 743. Nor if they be destroyed by fire on the dock order that the proportion to be paid to each claimant after landing. Per Curtis, J., Salmon Falls Mfg. Co. v. may bo determined. Norwich Co. v. Wright, 13 Wall. The Tangier, 11 Law Rep. (N. S.) 6.

104, 124; Dyer v, National S. S. Co., 14 Blatchf. 483; Section 4283 is not so precise on this point. We are The Niagara v. Cordes, 21 How. 7, 26. not aware of any reported case in which it has been In a case where only one person sustained loss it was decided whether, under that section, the loss or dam- said that the ship-owner must take the same proceedage must have occurred on the vessel itself.

ings in order to have the benefit of the act. Per Under section 4283, the destruction, injury, etc., Dwight, Com., Baird v. Daly, 57 N. Y. 236, 252. But to must have occurred "without the privity or knowl- the contrary is the opinion of Grover, J., in Dougan v. edge" of the owners.

Champlain Trans. Co., 56 N. Y. 1, 6, and the reasoning The English courts have shown a disposition to con- in Norwich Co. v. Wright would seem not to apply. strue the words “privity and knowledge” strictly in The rules prescribed by the Supreme Court allow the favor of ship-owners.

owner to take these proceedings and at the same time Thus, if the loss is occasioned by the actual fault of to contest his liability to any extent whatever by inone of several part owners, his co-owners are not serting proper allegations in his libel or petition. thereby precluded from the benefits of section 4283. Adm. Rule 56. But literal compliance with section See The Spirit of the Ocean, Br. & Lush. 336. This case 4285, and a transfer in trust for the benefit of the was perhaps anticipated, as would appear from the claimants, would seem hardly consistent with reservprovision that the liability shall not exceed “the ing the question of liability. Of course, whero a stipamount or value of the interest of such owner in such ulation is given on appraisement or money deposited vessel and her freight then pending."

under Admiralty Rule 54, there would be no difficulty. If a collision occur while the master, who also The Annie Childs, Lush. 509. part owner, is on board, but not ou deck, his duty not It is held that great delay in taking the necessary calling him there, he can have the benefit of the act. proceedings will deprive the owner of the benefit of the The loss occasioned by the collision is not, under the act. Dyer v.Nat.S.S.Co.,14 Blatch.483, 487. Our practice circumstances, with his “fault or privity.The Obey, in this respect differs from the English courts, where L. R., 1 Adm. & Ecc. 102.

proceedings to limit liability may be taken after an When the owner is a corporation, tho privity or adverse decree in admiralty. Leycester v. Logan, 3 K. knowledge of the managing officers of the corporation & J. 446. must be regarded as the privity and knowledge of the The value of the interest of the owner of the vessel corporation itself. Lord v. Goodall, etc., S. S. Co., 4 was in some cases of collision computed on the value Sawy. 292; Hill Mfg. Co. v. Prov. & N. Y. S. S. Co., of the vessel immediately before the disaster. Walker 113 Mass. 495, 500.

v. Boston & Hope Ins. Co., 14 Gray, 288, 303; Barnes If such managing officers, or an individual owner v. Steamship Co., 6 Phila. 479 (per Grier, J.) But the fails to select a competent master and crew, and to Supreme Court, in view of section 4285, allowing a have the ship seaworthy when she sails, and loss ensues transfer to trustees in full exoneration of the shipin consequence of such neglect, such loss is chargeable owner, which must necessarily be made after the disto the owners as occurring with their privity and aster, held the value of the interest at that time to be knowledge. Lord v. Goodall, etc., S. S. Co., supra. the limit of liability, even if the vessel were entirely

Can there be a loss by fire caused by the neglect of destroyed. Norwich Co. v. Wright, 13 Wall. 104, 126; the owner, and so not within the total exemption al- Waltson v. Marks, 2 Am. Law Reg. 157, 165. lowed by section 4282, and yet within the limited lia- Nor can insurance be included in this value. It is a bility of section 4283, because occasioned without the distinct, independent subject of property. The assign“privity or knowledge of the owner?”

inent of the ship passes no interest in it. Waltson v. On the one hand it is argued that special provision Marks, 2 Am. Law Reg. 157, 167. (Per Kane, U. S. is made in section 4282 for this peculiar single loss, and D. J.) even though the general language of subsequent sec- The owner must answer not only to the amount of tions might include the loss in that section provided his interest in the vessel but also in the freight pendfor, yet where they may be fully applied to other cases iug. Aud for this purpose a reasonable freight upon of loss, they should be so applied and be satisfied with his own goods is to be included. Allen v. Mackay, 1 such application, thus leaving each and all provisions Sprague, 219; The Glaucus, 1 Low. 366. But a whaling in force - a cardinal rule in the construction of stat- voyage is special in its character, and on such a voyage utes. Again, by no code of law was an owner of a ship as ordinarily prosecuted there is no “freight pending limited in his liability where the loss occurred by bis within the meaning of the act. The Ontario, 2 Lowell, own “design or neglect;" the provisions would have 40, 52; affirmed as Swift v. Brownell, 1 Holmes, 467. to be very plain and clear that would justify such an If there be a decree against two vessels, A and B, as interpretation. Knowlton v. Prov. & N. Y. S. S. Co., in a case of collision whero both are found in fault, 53 N. Y. 76.

that the owners of A pay 2,0001, to the owners of B, On the other hand it is said that the solution of the and that the owners of B pay 14,0001. to the owners of question must depend on the facts of the case as de- A, and the owners of B take proceedings to limit their veloped by judicial process. In re Prov. & N. Y. S. S. liability under the act, which result in the payment of Co., 6 Ben, 124. To the same effeót is Chisholm v. a fund into court for distribution, the owners of A Northern Transportation Co., 61 Barb. 363, 390, which cannot retain the 2,0001. by way of set-off against the as an authority must be considered overruled by the amount due to them by the owners of B, proving case in 53 N. Y, 76.

against the fund in court for the balance only, but In a case within section 4283, if the owner claims the they must pay the 2,0001. in full to the owners of B, benefit of that section he must take proceedings him- and prove against the fund in court for the 14,0001. self (unless some claimant does so), under sections Otherwise the owners of B, instead of having their 4284 or 4285, at least where there is more than one liability limited pursuant to the statute, would suffer claimaut. Otherwise the owner might reduce the an additional loss of 2,0001., and would be in exactly thes oompensation to be made to those claimants who same position as if they had been condemned in Ad;miralty to bear all their own loss. Chapman v. Royal raising money thereon for the company. Neither Netherlands S. N. Co., L. R., 4 Prob. Div. 157.

LeCount nor Palmer & Co. received any consideration Finally it is always competent for the ship-owner by for their respective indorsements. The note thus incontract to waive the benefit of any or all the provis- | dorsed was, with others, placed by the company in the ions of the statute. The original act of 1851 contained hands of Hutchinson & Ingersoll, a firm of uote-brokers an express proviso to this effect, at the end of the first in Wall street, for negotiation and sale. section. This is omitted in the Revised Statutes; but Prior to the execution of the note Hutchinson & Init is believed that on general principles, as no rule of gersoll had frequently borrowed money from the demorality or public policy forbids, such a contract fendant in error, the National Bank of the Republic would be binding without the aid of the proviso. of New York. They however kept no account with

But the contract must be express, and no mere im- that institution, and bad no transactions with it other plied contract can be alleged against the express ex- than those to which reference will now be made. emption or limitation of the statute. Walker y. The In the month of October, 1872, the bank first made Trans. Co., 3 Wall. 150.

them a call loan, at seven per cent interest, of $25,000, J. F. MOSHER.

on collaterals. Subsequently, in 1873, it made to them

other call loans on collaterals, at the same rate of NEGOTIABLE INSTRUMENT - HOLDER FOR interest, as follows: March 11th, $15,000; March 15th, VALUE - BAR TO ACTION - ESTOPPEL $10,000; April 1lth, $10,000; May 16th, $10,000; May - CONFLICT OF LAW.

20th, $20,000; May 230, $10,000; Jupe 4th, $15,000; June

Oth, $12,000; June 12th, $10,000; June 19th, $36,000; SUPREME COURT OF THE UNITED STATES-OCTOBER

and July 11th, $10,000. Each of these loans was a sepaTERM, 1879.

rate one, upon a particular and distinct lot of collaterals. Hutchinson & Ingersoll were in the babit of

borrowing money from various banks and from indiBROOKLYN City & NEWTOWN RAILROAD Co., Plaintiff

viduals or firms upon specific lots of collaterals. in Error, v. NATIONAL BANK OF THE REPUBLIC. The loan of $36,000 on 19th June, 1873, was upon 1. The judgment in an action instituted by the holder of

several notes as collateral security, among them the negotiable paper against the indorsers is not a bar to a

above-described note for $5,000, executed May 9th, 1873. subsequent action by the holder against the maker, the All the loans by the bank, prior to the one of $36,000, latter not having been made a party to the first action, had been paid off before that loan was made. nor notified of its pendency.

The loan of $10,000 on the 11th July, 1873, was upon 2. An estoppel arising out of the judgment of a court of

the following notes as collateral security: Two notes competent jurisdiction is equally conclusive upon all

of Howes, Hyatt & Co. for $2,605.98 and $3,510.15, and the parties to the action and their privies. It may not

two of H. L. Ritch & Co. for $3,320.17 and $2,146.92. be invoked or repudiated at the pleasure of one of the parties as his interest may happen to require.

On the 22d July, 1873, Howes, Ilyatt & Co. having 3. The transfer, before maturity, of negotiable paper, as

becomie insolvent, Hutchinson & Ingersoll executed security for an antecedent debt merely, without other and delivered to the bank, at its request, antedated to circumstances - if the paper be so indorsed that the June 19th, 1873 (which was the date of the $36,000 holder becomes a party to the instrument - although loav), a written instrument whereby they agreed with the transfer is without express agreement by the cred the bank “that all securities, bonds, stocks, things in itor for indulgence, is not an improper use of such

action, or other property or evidences of property whatpaper, and is as much in the usual course of commercial

soever, which have been or may at any time hereafter business as its transfer in payment of such debt. In either case the bona fide holder is unaffected by equities

be deposited or left by us or on our account, with said or defenses between prior parties of which he had no bank, whether specifically pledged or not, may be held notice.

by said bank, and shall be deemed to be and are hereby 4. The courts of the United States, in determining ques- pledged as security for the payment of any and every

tious of general commercial law, are not controlled by indebtedness, liability or engagement on our part, held the decisions of a State court, even in an action ins:i

by said bank, and that on the non-payment, when due tuted by a National bank, located in the Stato rendering

and payable, of any sum or sums of money which have such decision, against one of its own citizens, upon a negotiable note there executed and payable. Such de

been or may hereafter be by said bank lent, paid or cisions, not bazed upon local legislative enactments, are

advanced to or for the account or use of us, or for not "lairs" within the meaning of the Federal statute,

which we are or may become in any way liable or inwhich provides that “the laws of the several States, debted to said bank, the said bank, or its president or except where the Constitution, treaties or statutes of cashier, may immediately thereupon, or at any time the United States otherwise require or provide, shall be thereafter, sell, etc., * and apply the pet proregarded as rules of decision in trials at common law ceeds of sale to the payment of any sum or sums duo in the court of the United States, in cases where they

and payable from 113 to said bank, and hold any surapply." Suift v. Tuson, 16 let. 1, reaffirmed.

plus of such net proceeds, together with any and all V error to the Circuit Court of the United States

remaining securities, property, or evidences of propfor the Southern District of New York. The

erty, then held by said bank and not sold, as security

for the payment of any and all other of our tben exopinion states the case.

isting and remaining liabilities and engagements to HARLAN, J. The case, as made by an agreed state- said bauk." ment of ficts, is this: The plaintiff in error, the When that writing was executed no agreement was Brooklyn (ity & Newtown Railroad Company, a corpo- made to extend the loan or to refrain from calling it in. ration organized under the laws of New York, exe- The bank knew that Hutchinson & Ingersoll were cuted, at Brooklyn, in that State, on 9th May, 1873, its note-brokers, but until August 8, 1873, had no knowlpromissory note for the sum of $5,000, payable four edge or information of the connection of the Palmers months after date to the order of Wm. V. LeCount, with the railroad company, or of the circumstances [its) treasurer, at the Atlantic State Bank of Brooklyn. atteuding the making or indorsement of the note in It was indorsed in blank, first by LeCount, treasurer, suit, or of the purpose thereof, or of any relations, and then by Talmer & Co., a firm composed of Thomas dealings or communication between Hutchinson & InPalmer, Jr., ai d Anson S. Palmer, the former being gersoll, and the parties to the note (except that they the president and the latter the financial agent of the kuew Hutchinson & Ingersoll to be note-brokers), or company, and together owing the larger portion of its that the note was any thing else than ordinary basi

The note was made for the purpose only of ness paper, or that there was any question as to the


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