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OV exceptions from Superior Court.

praisers appointed by the Probate Court as to the value between misrepresentations by the vendor on the one placed upon it by the appraisers, are not sufficient to sus hand as to what he himself had paid, and on the other tain an action of the case for deceit in the sale or ex as to what had been paid by third persons, as the dicta change of property.

in Manning v. Albee, 11 Allen, 522, and Belcher v. Costello, 122 Mass. 190, would seem to imply. We can see

no difference in legal effect between a misrepresentaThe case and material facts are sufficiently stated in

tion by the vendor in regard to the price which he the opinion.

paid and one by him in regard to the price paid by

other persons. The case of Medbury v. Watson draws John H. Potter and George J. Moody, for plaintiff. no such distinction, and the other cases cited only purBean & Bean, for defendant.

port to follow that.

In this respect'then the misrepresentations as to SYMONDS, J. Case for deceit alleged to have been

the appraisal stand upon the same footing as that class practiced by the defendants in effecting an exchange

of affirmations of cost and value which the authorities of real estate with the plaintiff.

hold are not material. They were made by vendor to One of the allegations of fraud relied upon at the

vendee. The ruling so regards them. In another retrial was that the defendants said the place in Belfast

spect they are even less dangerous to a vendee in the which they exchanged with the plaintiff for her farm

exercise of common diligence; the proceedings of apin Fayette, was valued by the appraisers upon the es

praisers upon estate being matters of public record, tate of Lydia A. Hollis, mother of the defendant,

and therefore open to the inspection of all persons inGrace U.Davis, at $1,000, when in fact the appraisal was

terested. Notwithstanding the official character of only $225.

the action of the appraisers, it still expresses only the In this respect the jury were directed by the presid. judgment of individuals as to the values of property, ing judge that if the defendants stated “as a matter of

and from the time of Harvey v. Young, Yelv. 21 a, it fact that the appraisal had been made by the official

has been held as a general rule that mere affirmations appraisers, under their oaths, in performing their offi

of value between vendor and vendee are not actionacial duty under the laws of this State, and that state

ble, though false; “for it was but the defendant's bare ment was false (and there is no dispute, I believe,

assertion that tho team was worth so much, and it was about the fact that the appraisal was $225 instead of

the plaintiff's folly to give credit to such assertion.” $1,000), and was known by them to be false at the time,

The extension of this rule to false statements about and was made for the purpose of deceiving the plaint

prices paid or offered seems to include its application iff, and as an inducement to her to make the exchange,

to fraudulent representations, such as appear in this and she did rely upon it, and was thereby induced to make the exchange,” it was a fraudulent misrepresen

case, about an appraisal of property.

In Burton v. Lister, 3 Atk. 385, a decree for the spetation, which would givo the plaintiff a right of action

cific performance of an agreement to buy timber trees to recover the damages which she sustained thereby.

was resisted on the ground that the plaintiff had proThe ruling appears to have been a pro forma one, and

cured the contract by representing that two timber tho verdict being for the plaintiff, the question of its

merchants had valued the trees at £3,500, when in fact correctness is reserved upon exceptions by the defeud

their valuation was only £2,500. Lord Hardwicke held ants.

that this, if proved, was good ground for refusing to It is the general rule, at least in Massachusetts and

decree specific performance, for such a decree is in the Maino, that an action of tort for deceit in the sale of

discretion of the court, and should be entered only property does not lie for false and fraudulent repre

when the agreement is certain, fair and just in all its sentations by the vendor to the vendee concerning its

parts. This case is cited in 2 Kent Comm. 487, as illuscost or value, or the prices which have been offered or

trating the greater strictness of the rule in thiş respect paid for it. Long v. Woodman, 58 Mo. 5:2; Ilolbrool:

in equity than at law, and also as showing that in v. Connor, 60 id. 578; Jartin v. Jordan, id. 531; Bishop

equity there is a distinction between enforcing specifiv. Small, 63 id. 12. “When a vendor of real estate af

cally and rescinding a contract. “ It does not follow firms to the vendee that his estate is worth

that a contract of sale is void in law merely because much; that he gave so much for it; that he has been

equity will not decree a specific performance.” offered so much for it, or has refused such a sum for it,

Under the principle which the decisions in this State such assertions, though known by him to be falso, and

have established, we think that proof of the frauduthough uttered with a view to deceive, are not action

lent representations alleged in regard to the appraisal able.” Hedbury v. Watson, 6 Metc. 259; Gordon v.

of property was not sufficient to sustain the action. Parmelee, ? Allen, 212; IIemmer v. Cooper, 8 id. 334;

Exceptions sustained. Alooney v. Hiller, 102 Mass. 220; Cooper v. Lovering,

Peters, ('. J., Barrows, Danforth, Virgin and Libbey, 106 id. 78; Parker. v. Joulton, 114 id. 99; Poland y.

concurred. Brownell, 131 id. 138; l'uge v. Parker, 43 N. II. 368.

With this rulo established, it is difficult to see how a distinction can be drawn so as to hold a false state

CONSTITUTIONAL LAI-PROHIBITION OF HANment about an appraisal of property actionable, when

IFICTURE OR SALE OF AN ARTICLE proof of similar misrepresentations in regard to pricos

INJURIOUS TO PUBLIC HEALTH offered or actually paid for it would fail to support the

OLEOTARGARINE. action.

It will be observed that in this case the falso affirma. NEW YORK SUPREME COURT, GENERAL TERM, SECOND tions alleged aro by the vendor to the vendee, person

DEPARTMENT. ally or by agent, not as in Jedbury v. Watson, supra, by a third person, who stands“ in the light of a friend

PEOPLE V. MCGANN. who has no motive nor intention to depart from the Section 6 of "An act to prevent deception in sales of dairy pro truth, and who thus throws the vendce off his guard ducts,” Laws of 1881, ch. 202, provides that “no person and exposes him to be misled by the deceitful repre shall manufacture out of any oleaginous substance or sentations."

substances, or any compound of the same, other than This is the distinction drawn in that case between that produced from unadulterated milk, or of cream from misstatements of this class by the vendor and the the same, any article designed to take the place of butter same by a person who assumes to be disinterested, not or cheese produced from pure unadulterated milk, or

80

JJ.,

cream of the same, or shall sell, or offer for sale, the same ment by the adoption of the Constitution of the Unias an article of food."

ted States, in which they delegated to the national Held, that said section prohibited, absolutely, the manufac government certain enumerated powers. Then the

ture and sale, as therein specified. of any article designed people of each State established State governments to take the place of butter or cheese, without regard to and invested the same with all the power which they whether or not it was manufactured or sold with an in did not expressly withhold; 80 that the powers of the tent to deceive.

general goverument are definite and restricted, while That the Legislature had power to pass the act by virtue of the powers of the State governments are general and

the police power vested in it, and that it was constitu- residuary, and all power not conferred on the general tional and valid. Pratt, J., dissenting.

government belongs to the State governments or to A PPEAL from a judgment of the Court of Special | the people. The State governments exercise all the

Sessions, convicting the defendant of a misde powers of sovereignty not conferred on the national meanor in having violated the provisions of chapter government, so far as the people permit them to be 202 of the Laws of 1884.

exercised at all. Without constitutional limitations James Troy, for defendant.

the power of the Legislature to make laws would be

absolute, because the law-making power is intrusted James W. Ridgway, district attorney, for people. by the people to the legislative branch of the State

government. Whether a statute is constitutional or DYKMAN, J. The Legislature of this State has en

uot is a question of power, and if that question be anacted a law with a title at its head indicative of a pur-swered in the aflirmative the courts can iustitute no pose to prevent deception in sales of dairy products in inquiry into the proper exercise of the power. They this State. Ch. 202, Laws of 1884. Section 6 of this

must assume that the power and discretion have been law has in it these words: “No person shall manu- judiciously and wisely exercised, and that the Legisfacture out of any oleaginous substance or substances, lature had before it, at the time of its action, all reor any compound of the same, other than that pro-quisite eridence to justify the same. But the people duced from unadulterated milk or of cream from the have set certain limitations to the law-making powers, same, any article designed to take the place of butter some of which are expressed and some are implied. One or cheese produced from pure unadulterated milk, or of the express limitations is that no person shall be cream of the same, or shall sell, or offer for sale, the deprived of life, liberty, or property without due prosame as an article of food." Then the same section

cess of law. If therefore the law in question falls specifies the punishment for its violation.

under the condemnation of the Constitution it is beThis defendant has been convicted of a misde- | cause'it offends against this limitation of legislative meanor for violation of this section of the law, on

power. proof that he manufactures what is called oleomargar This constitutional restriction has received exhaustine from an oleaginous substance other than that pro ire examination in our Court of Appeals in the cases duced from milk or cream, namely, animal oil ex of Wynehamer v. People, 13 N. Y. 378, and Bertholf v. tracted from the tallow of beef; that this article is O'Reily, 74 id. 509; and in both of these cases the conmanufactured for sale as a substitute for butter; that clusion was reached that notwithstanding such l'Ait resembles butter so much in appearance and tasto striction the legislative power extends to entire prothat it might be taken for butter by any ordinary hibition of the traffic in spirituous liquors. This docperson, and that it was designed by the defendant to trine pioceeds on the theory that the Legislature may take the place of butter as an article ɔf food and a sub

prohibit and suppress any traffic injurious or demorstitute therefor. Ile however manufactures it as andalizing either to the public health or public morals, or calls it oleoniargarine, and does not pretend or repre- | in its tendencies or consequences, and that the consent that it is butter, but states expressly that it is clusion and decision of the Legislature on the question oleomargarine and not butter, and that it is designed of fact involved is final and conclusive. and intended as a substituto therefor; that he has sold

The same doctrine was enunciated by the Supreme about eight pounds of this article as oleomargarine Court of the United States in the Slaughter-House with the design that it should be used for food as a

cases, 16 Wall. 36, where a law of the State of Louissubstitute for butter, and that the purchaser knew iana, which operated very disastrously on large busihow it was made and of what it was composed and ness interests and materially impaired the value of bought it for use as an article of food in the place of private property, was held constitutional and valid. butter.

These cases are sullicient to sustain the constitutionFrom such conviction the defendant has appealed to ality of the law under consideration. It may well be this court, on the theory that the section under which that such legislation requires the highest reason for its his condemnation was secured was intended only to justification, but it is not the province of the courts to apply to a case of deception in the manufacture and inquire into their existence. Complaints against such sale of the article specified. The language employed enactments must be carried to the Legislature and not however will not admit of that mild interpretation. It to the courts. prohibits both the manufacture out of any oleaginous It must be assumed in the consideration of this substance, except that produced from milk or cream, statute that the Legislaturo ascertained that the use of of any article designed to take the place of butter or this prohibited article was injurious and detrimental cheese produced from milk or cream, and also the to the public, and so found it necessary to advance sale, or offer for sale, of the same as an article of food.

in respect to the same, beyond the point of regulation, The probibition, so far as it extends, is absolute, and to actual prohibition. The presumption is that such if the Legislature possessed the power to make the law legislative action was deemed necessary for the welit must be respected and enforced.

fare of the public, and it cannot be abrogated by the Under the American system of gorernment the un courts. With these necessary assumptions this law controlled power of legislation resides in the people falls easily within the police power of the State, which themselves as an aggregate body politic. On the ser- is a power rested in the Legislature to ordain such aration of the colonies from the mother country all laws and ordinances as shall be deemed essential and sovereignty and supremacy devolved upon the people necessary for the welfare, health and property of the in undiminished plenitude. But they do not exercise public. The underlying foundation of the power is sovereigu power directly. In the first place all the the principle that all property must be so used that it people of all the States established the general govern- shall not become injurious to others. All reasonable

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restraints may be imposed for the attainment of this Until the Legislature, in the exercise of its inherent end which may be deemed necessary by the law-mak powers to enact police and health laws, prohibits the ing power, even though they amount to absolute pro manufacture of oleomargarine, it seems to me a citihibition, and the propriety of such restrictions is a zen has a right to make auy pure and wholesome arlegislative question entirely free from all judicial con ticle of food and sell it for what it actually is, aud it is trol. The enactment of this law in question was immaterial what lawful use shall be made of it aftertherefore within the scope of legislative power as the ward. If a man is too poor to buy good butter I see same has been delegated to the Senate and Assembly no objection to his using oil, cheese or honey, or any by the people of the State in the fundamental law. It other substitute for butter. A law prohibiting the prohibits the manufacture and sale of oleomargarine making of an iron rake to be used as a substitute for as an article of food in place of butter, and the defend one made entirely of wood could be passed with just ant has been convicted of a violation of its provisions, the same legal effect, as a law providing that oleomarand in our view the conviction must be affirmed. garine should not be made to be used as a substitute BARNARD, P. J., concurred.

for butter. I do not claim that the Legislature cannot PRATT, J., dissenting. I am constrained to dis- do all this, but that it can only do it to protect the sent from the views of a majority of the court public health. Assuming even that it may pass such a in this case upon the following grounds: If sec law, if in the exercise of its discretion it deems it best tion 6 of the act under wbich the defendant was for the public health, and that the courts cannot reconvicted is to be construed as an absolute pro view such an exercise of discretion, however unwise it hibition of the manufacture of pure and whole- may be, yet this law was not passed under the some oleomargarine, unconnected with any de- exercise of any such discretion or for any such pur sign to deceive the public or simulate dairy butter, it pose, nor can we indulge in the presumption that such is unconstitutional as being within the prohibition of was the purpose of the act when we read the title or article 1, section 6 of the State Constitution.

the act itself. There are certain well settled principles to be kept in view in consideriug this class of questions. Before

NEW YORK COURT OF APPEALS ABSTRACT. a statute can be annulled by the courts its repugnancy to the Constitution should be clearly demonstrated.

BANKRUPTCY FIDUCIARY CAPACITY - UNAUNeither cau courts sit in review of the discretion of the Legislature, or determine the wisdom or propriety

THORIZED SALE BY BROKER-REQUEST TO SUBMIT TO of legislative action, and every intendment is in favor

JURY.-An unauthorized sale by a broker of the stock,

purchased by him for a customer, although a converof the validity of statutes. In Bertholf v. O'Reilly, 74 N. Y. 516, it was held by templated by the Bankrupt Act. IIennequin v. Clews,

sion, does not constitute such a fraud as is conthe Court of Appeals “that no law can be pronouuced N. v. 427; Palmer v. Hussey, 78 id. 303. Neither invalid for the reason simply that it violates our notions of justice, is oppressive and unfair in its opera

under the circumstances was the insolvency of the de

fendants at the time of the sale conclusiva evidence of tion, or because in the opinion of some or all of the citizens of the State, it is not justified by public neces

a fraudulent intent. We do not think that the testisity or designed to promote the public welfare. We mony conclusively proved the fraud alleged so as to repeat, if it violates no constitutional provision it is entitle the plaintiff to a direction of a verdict in his valid and must be obeyed.” It is equally well settled

favor. At most, the evidence raised a question of that whether an action is obnoxious to the Constitu

fact, which might have been submitted to the jury. tion is il question for the court to

No request to that effect was made, but both parties

pass upon, and for that purpose it is competent

requested the court to direct a verdict. Under these

for the court to look

circumstances it has often been held that the parties

the circumstances and purpose under which and for which

must be deemed to have submitted the questions of

act is passed. That the substance from which oleomar-fact, if any, to the decision of the court, and waived garine is made is property cannot be disputed. Neither

the right to go to the jury. O'Neill v. James, 43 N. Y. can it be claimed that this act was passed to protect or

8t, and subsequent cases. The decision of the court preserve the public health, for the reason that it

therefore stands in the place of a verdict of the jury. nowhere appears that such was the purpose; and an

The evidence being such that a verdict for the defendentirely different purpose does appear in the title. If

ants could have been sustained, the direction to find we are to seek for an expression of the purpose in the

such verdict was not error under the circumstances. act itself, it is plain that its object is to create and Stratford v. Jones. Opinion by Rapallo, J. protect a monopoly in the manufacture of dairy but- [Decided Jan. 20, 1885.] ter and prevent any successful competition therewith. WATER AND WATER-COURSES--PRESCRIPTIVE RIGHT-In this view it deprives the owner of the substance EQUITABLE ACTION TO QUIET TITLE-INJUNOTIONfrom which oleomargarine is made of the beneficial PLEADING -- JOINDER OF DEFENDANTS. - Defendants enjoyment of his property and the fruits of his lawful threatened to float a large number of logs over the labor.

plaintiff's lands, using the stream and its banks for It was held in re Peter Jacob, 19 Week. Dig. 533, that that purpose, and they would then do some damage to it is not constitutionally competent for the Legisla- the banks of the stream and other lands of the plaiutture to deprive by any arbitrary enactment a laborer iff. They would occupy the stream for several days. in any lawful vocation of his right of work, and of en Not only this, they claimed the right to float the logs, joyment of the fruits of his work, in his residence or and asserted, in substance, that they would do 80 in his own way, except for purposes of police or health whenever they chose to. By continuing to exercise regulations.

the right they might, by lapse of time, be able to prove It is true that the statute then under consideration and establish a right by prescription. They not only recognized the legality of the labor and only restricted claimed a right for themselves but for the public-for it to certain places, while this prohibits all the labor overybody. That in such a case, upon such facts, a or manufacture if the article is to be used thereafter plaintiff may maintain an equitable action to quiet as a substitute for butter, but the principle is the same. his title and settle his rights and prevent the threatIn both cases the citizen is deprived of the beneficial ened injury is abundantly settled by authority. Angell use of his lawful property.

on Wat. Cours., $ 449; 2 Story Eq. Jur., $ 927; 3 Pom.

to

an

Eq. Jur., $ 1351; Holsman v. Boiling Springs Bleach cease the premises, or the principal only realized from ing Co., 14 N. J. Eq. 335; Campbell v. Seaman, 63 N. a sale, should be conveyed to the issue of her marY. 518; Johnson v. City of Rochester, 13 Hun, 285; riage with the grantor's son living at the time of her Swindon Water-Works Co. v. Wilts. & Berks. (anal decease or their legal representatives. The grantee died Co., L. R., 7 H. L. 697 : 14 Eng. Rep. 100; Clarnes v. without having sold, but devised the same to her son, Hofferthau, Petrie's L. Rep., 8 Ct. App. 125, 142; with power to her executor to sell and convey. In an Goldsmid v. Tunbridge Wells Imp. Com., L. R., 1 (h. action to compel specific performance of a contract to App. Cas. 349, 354. This is not a case where the de purchase said real estate plaintiff claimed under a confeudants threatened only to commit a single trespass, veyance from said executor. TIeld, that whatever but they threatened to commit, aud claimed the right construction is given to the instrument, the grantee to repeat the trespass every year. Here a preventive still takes all of the interest which the grantor inaction was proper to prevent an irreparable injury tended to confer upon her, and by confining her estato within the meaning of the equitable rule, and also to to that of a life tenant only, as is clearly contemplated avoid a multiplicity of suits. (2) The defendants were by the deed, a door is closed against the possible deproperly united. They claimed a common right hos feat of the expressed intention of the grantor to transtile to the plaintiff. They asserted a public right com mit the corpus of the estate to his own descendants. mon to many. In such a case all the parties asserting Goodtitle v. Bailey, Cowp. 600. If it be held that she the common right may be united as defendants in an takes the fee of the land, the covenant in the deed action by one who seeks to overthrow the common would restrain her from impairing the principal of the claim, and establish his right against all claimants. estate during her life, and if her interest is adjudged Varick v. Smith, 5 Paige, 137; Dimmock v. Bixby, 20 to bo a life estato merely, she would of course be enPick. 368, 377; Woodruff v. North Bloomfield, etc., 8 titled to enjoy its rents, issues and profits during her Saw. 6.28; Hill v. Newington, 57 Cal. 56. Myers v. life. We think that a construction which gives to Phillips. Opinion by Earl, J.

Mary Livingston De Poyster a life estate only effectu[Decided Dec. 9, 1884.]

ates the desigu of the grantor, and is abundantly supDEED-CONSTRUED AGAINST GRAXTOR-WIIEN RULE

ported by authority. Jackson v. Myers, 3 Johns. 387;

Moore v. Jackson, 4 Wend. 68; French v. ('arhart, 1 N. DOES NOT APPLY-IXTENT TO GOVERN-LIFE ESTATE OR

Y. 96; Post v. IIover, 33 id. 593; Hunt v. Johnson, 44 FEE-POWER TO SELL-DISCRETION-MAY NOT BE I)EL

id. 37; Saunders v. Hanes, id. 354; Terry v. Wiggins, 47 EGATED.—(1) The rule governing controversies be

id. 512; Wager v. Wager, 96 id. 161; Smith v. Bell, 6 tweeu grantor and grantee, by which the language of

Peters, 512 It will be observed that while the power a conveyance is required to be taken most strongly

to sell is specially mentioned, careful provisions are against the grantor, has no application when the dis

alyo inserted for the disposition of the proceeds of the pute occurs between parties claiming under the same

sale. They are to be immediately invested in real or coureyance, and are each entitled to the benefit of the

personal property, and the principal is to be conveyed same rule of construction. If the disposition which

unimpaired to the issue upon the decease of the granthe owner of property desires to make does not con tee of the power. It appears therefore that its exertraveno any positive prohibition of law, his control cise after the death of the grantee was impliedly forover it is unlimited, and the only office which the bidden, and that the grantee had no disposing power courts are called upon to perform in construing his

over the property conferred upon her. Iler interest is trausfers of title is to discover and give offect to his

confined to the enjoyment of tho rents, issues, and intentions. In the case of repugnant dispositions of

profits during her life. These provisions do not authe same property contained in the same instrument,

thorize either of the expressed trusts permitted by the the courts are from necessity compelled to choose be statute, and are therefore ineffective to create such an tweeu them; but it is only when they are irreconcil estate, but do contain an authority to do an act in reably repuguant that such a disposition of the question lation to lards which the owner might himself lawis required to be made. If it is the clear intent of the

fully perform, and there being other persons than the grantor that apparently inconsistent provisions shall

grantee entitled to the benefits, if any there are, deall staud, such limitations upon and interpretatious of rivable from the performance of the act, it takes effect the literal signification of the language used must be

as a power in trust. 3 R. S. ñth ed.) 2188, $$ 74, 95 ; imposed as will give some effect if possible to all of the Russell v. Russell, 36 V. Y. 587; Delaney v. Mc('orprovisions of the deed. Salisbury v. Andrews, 19 Pick. mack, 88 id. 174. This power is a general power, since 250; Norris v. Beyoa, 13 N. Y. 27:3; Jackson v. Blod.

it authorizes the grantee to convey the property to any gett, 16 Jobus. 178. “It is a cardinal rule in the con alienee whatever (377), but it is neither inperative nor struction of contracts, that the intention of the parties beneficial, since its exercise is left altogether to the is to be inquired into, and if not forbidden by law is discretion of the grantee, and other persons than herto be effectuated, and whenever tho language used is self aro to be benefited by its execution ($$ 79, 96), susceptible of more than one interpretation, the courts while the absoluto power of disposition is vested in the will look at the surrounding circumstances existing donee. Yet under the statute the express directious when the contract was entered into the situation of given as to the investment as to the proceeds, and the the parties, and of the subject-matter of the instru limitations imposed as to her authority to control its meut.” French v. ('arhart, 1 N. Y. 102. This rule is ultimate destination, show that it was not a power to now by statute mado imperative upon judicial tribu be executed for her solo benefit, and the creation of a nals, and cannot be evaded when the intention of the fee in the grantee of the deed by implication is theregrautor is made clearly apparent by the language of fore precluded (&$ 81, 85). (2) The terms of the power the conveyance. 3R. S. (ñth ed.) 2205, $ 2. De P. ex. confer its exercise upon the donee alone, and being a eouted to the wife of his son a deed containing words trust to sell lands and invest the proceeds, sufficient and appropriate to convey an absolute fee. purely a discretionary power, whose execution could The deed declared that it was made by way of not be delegated to another, or restrained or enforced advancement to be charged against the share of the upon the application of any of the parties. Newton v. son in the grantor's estate, and to enable the grantee Bronson, 13 N. Y. 592; Lewin on Trusts, 296; Mayor of to sell and convey in fee siniple if she should desiro so New York v. Stuyvesant, 17 N. Y. 12; Perry on Trusts, to do. It also contained a covenant upon the part of 287, 408. The power and the trust connected therethe grantee, that upon sale by her she should cause with necessarily deterniine upon the death of the the proceeds to be properly invested, and at her de grautee, and the property after tbat erent went to the

was

remaindermen, discharged of any authority over it by any person whatsoever. Coleman v. Beuch. Opinion by Ruger, C. J. [Matters calling for discretion may mot be delegated. 20 Eng. Rep. 523, 4; 29 Am. Rep. 108; 75 Y. Y. 388; 19 W. Dig. 472; 53 Miss. 128-132; 22 Eng. Rep. 301.] [Decided Jan. 20, 1885.)

UNITED STATES CIRCUIT AND DISTRICT

COURT ABSTRACT.*

REMOVAL OF CAUSE-CASE ARISING UNDER LAWS OF UNITED STATES.—Plaiutiffs sued defendant, a United States marshal, in the State court, for trespass in seizing and carrying away books of account belonging to them, but the declaratiou failed to allege that defendant acted in his official capacity. Defendant demurred generally, and thereupon filed a petition for removal of the case to the Federal court, alleging in his petition that he was a United States marshal, and acted under an attachment issued by the United States Circuit Court in making the alleged seizure, “if any seizure actually occurred,” and that the suit was one arising under the laws of the United States, and involved the construction of such laws. Held, that the record did not present a case within the jurisdiction of the Federal court, and that the cause was not removable. Railroad Co. v. ississippi, 102 U. S. 135, 141. The case of Gold Washing & Water ('0. v. Keyes, 96 U. S. 199, was very much like the present. That was a bill in equity to restrain the defendants from proceedings alleged to constitute a nuisance, to which there was a general demurrer. The cause was removed from the State court to the Circuit Court of the United States as a suit “ arising under the Constitution or laws of the United States." Upon the pleadings alono, as was said by the Supreme Court, it was clear the defendants had not brought themselves within the statute. The complaint simply set forth the ownership by the complainant of his property, aud the acts of the defendants which it was claimed caused a private nuisance. No right was asserted under the Constitution or laws of the United States, and nothing was stated from which it could in any manner be inferred, that the defendants sought to justify the acts complained of by reason of any such authority. It resulted therefore that the validity of the judgment of the Circuit Court remanding the cause, and brought into question by the writ of error, depended upon the sufficiency of the facts set forth in tho petition for removal. “ For the purposes of the transfer of the cause,” said the court (p. 202), “ the petition for removal, which the statute requires, performs the office of pleading. Upon its statements, in connection with the other parts of the record, the courts must act in declaring the law upon the question it presents. It should therefore set forth the essential facts not otherwise appearing in the case, which the law has made conditions precedent to the change of jurisdiction. If it fails in this it is defective in substance, and must be treated accordingly.” Cir. Ct., E. D. Mich., July, 1884. Rothschild v. Matthews. Opinion by Matthews, J.

CORPORATION-FRAUDULENT CONVEYANCES-MORTGAGE-PRIORITY-ULTRA VIRES.—(1) A transfer of all the assets of one corporation to another, whereby, through a mere change of name, an attempt is made to defraud creditors, or which would operate a fraud, will not be upheld as against creditors, and the transferee, if he takes with notice, takes cum onere. (2) If in such a case the transferee mortgages its property to secure the payment of bonds, the lien of creditors of

the old corporation upon the property transferred will be prior in right to that of bondholders with notice. The doctrives laid down in the following cases establish respondent's claim to priority against the specific property transferred: Thomas v. Railroad Co., 101 U. S. 82; Hibernia Ins. Co. v. St. Louis & N. 0. Transp. Co., 13 Fed. Rep. 516; Harrison v. Union Pac. Ry. Co., id. 522; Cass v. Manchester Co., 9 id. 640; Brum v. Merchants' Co., 16 id. 140; Abbott v. American Co., 33 Barb. 578. (3) There is also another and controlling proposition. The old corporation was created by special act of the Geueral Assembly in 1857. Its provisions were minute and specific in many essential details, not only as to obligations and rights of stockholders, but as to their duties, respectively, to each other and to the public, particularly to the State, to which annual reports were to be made, etc. The construction of the road was to be commenced within ten years and completed within twenty years thereafter; a fair record of the whole expense of constructing the road to be kept, with the privilege reserved to the State to purchase the same, at rates named, at the expiration of fifty years. It is clear that the action of the corporation in transferring all its property thus formed was beyond its corporate authority, and evasive of its chartered obligations. The conclusive effect of what was done was to fasten a lien on the assets transferred prior in right to the mortgages. Cir. Ct., E. D. Mo., (ct., 1884. Blair v. St. Louis, etc., R. Co. Opinion by Treat, J.

TRADE-MARK-PARTIES OF SAME NAME-DECEPTION -INJUNCTION.-While a party cannot be enjoined from honestly using his own name in advertising his goods and putting them on the market, where another person, bearing the same surname, bas previously used the name in connection with his goods in such manner and for such length of time as to make it a guaranty that the goods bearing the name emanate from him, he will be protected against the use of that name, even by a person bearing the same rame, in such form as to constitute a falso representation of the origin of the goods, and thereby inducing purchasers to believe that they are purchasing the goods of such other person. Cir. ('t., E. D. Wis., Oct., 1884. Landreth v. Landreth. Opinion by Iyer, J.

TAXATION-INTER-STATE COMMERCE-LOGS IN TRANsit.-Logs cut on lands owned by a Minnesota corporation in Wisconsin, and hauled down to a river, and piled on the ico to await the opening of the river to be floated down into Minnesota, to be there manufactured into lumber, cannot be considered as in transit from one State to another in a commercial sense, and may be assessed and taxed in Wisconsin. The more intention in such a case, where there has beeu no sale or transfer of shipping out of the State, at some indefinite time, depending upon some circumstance so uncertain as the weather and the floods, would not amount to putting the property in actual or legal transit so as to bring them within the principle recognized in the adjudged cases. See State v. Carrigan, 39 N. J. L. 35; Blount v. Monroe, 60 Ga. 61; People v. Niles, 35 ('al. 282; Carrier v. Gordon, 21 Ohio St. 605; State v. Eugle, 34 N. J. L. 425; Ogilvie v. Crawford Co., u Fed. Rep. 745; Passenger cases, How. 416; State Freight Tax case, 15 Wall. 232; State Tax on Railway Gross Receipts, id. 284; Conley v. Chedic, 7 Nev. 336; ][urley v. Texas, 20 Wis. 665; Erie Ry. v. State, 31 N. J. L. 531; Brown v. Maryland, 12 Wheat. 442; Crandall v. Nevada, 6 Wall. 35; Almy v. State, 24 How. 169. Cir. Ct., W. D. Wis., 1884. Nelson Lumber Co. v. Loruin. Opinion by Burn, J.

TAXATION-CHARTER EXEMPTION OF CAPITAL STOCK OF RAILROAD-EXEMPTION OF INDIVIDUAL INTERESTS

* Appearing in 22 Federal Reporter.

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