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PARTNERSHIP_TRISTEE PROCESS-SET-OFF

-DEBT SECURED.

statute of limitations. A person cannot say that a will is valid to enable him to take a benefit under it, but invalid so far as regards the interests of those in remainder, who claim under the

same

MAINE SUPREME JUDICIAL COURT, FEB. 23, 1884.

will."

O exceptions from the Superior Court. The facts

This case was decided, it is true, after the passage DOXSELL V. PORTLAND AND OGDENSBURG R. Co., of the Stat. of 3 & 4Will. IV, but the claim of title and

('LARK AND TRUSTEE.* possession by :he daughter, being hostile and inconsistent with the title of the heir at law, her possession

At the time of the service of the writ on the alleged trustees, was adverse under the Stat. 21 Jas. I, as against the

they as a firm were indebted to the principal defendant lawful title. And being adverse, the heir at law must

railroad company in the sum of $607.58 for freight. Prior bring his action within twenty years, or his title will

to such service the railroad company gave its note for the be barred by the statute of limitations. It is better,

payment of $550, amply secured, to one of the members of says the law, that the negligent owner who has omit the urm, payable after such service, but before the disted to assert his right witbin the time prescribed by

closure At maturity of the note, by agreement bethe statute, should lose his rights than one should be

tween the payeeand the railroad company,its amount was disturbed in his possession, and harassed by stale de

s creditel upon the firm's indebtedness to the company; mands after the proof on which his title rests may

and the note, with the collateral security, was surrenhave been lost or destroyed. But whatever may be

dered to the company. Helil, that the trustees should be

charged for the whole amount of their indebtedness to the reasons or the policy of the law, twenty years adverse possession is a bar to the title, without regard to

the company, without deducting the amount of the note. the original right of the parties.

The possession being adverse and exclusive in this are stated in tho head-note aud opinion of the case, the only remaining question is, whether it has court. been continuous for twenty years? And this depends

W. L. Pulnam, for plaintiff. upon whether the possession of Doctor Wroth can be united, or in other words tacked to the possession of

Haskell & Woodman, for trustees. the appellee.

VIRGIN, J. The disclosure of Clark shows that the Now the possession of several distinct occupants of two supposed trustees were and are fact the sole Jand between whom no privity exists cannot, it is members of a partnership, although they are not detrue, be united to make up the statutory period, for

scribed as such in the writ. Service however was the reason, if one quits or abandons the possession, the properly made on each of them. Ilutchinson v. Eddy, owner will be deemed to be in the constructive posses

29 Me. 91; Iurner v. Parkins, 8 ('ush. 518. sion of the property by reason of his title. The separ

The disclosure also contains a statement of the acate successive disseisins in such cases do not aid each counts between the firm and the principal defendant, other, and their several possessions cannot there from which there appeared at the date of the service fore be tacked, so as to make a continuity of posses of the writ a balance of $607.58 in favor of the latter. sion.

The supposed trustees were therefore properly charged But we take it to be well settled that where there is

for that sum by the court below, unless they should a privity of estate between the successive parties in

have been allowed to deduct the amount of the note possession, then the possession of such parties may be given by the principal defendant to ('lark individunited so as to make the twenty years required by the

ually. statute. And it is equally well settled that such priv

The note was given prior to the service of the writ ity may be created by a sale and conveyance and pos

on the supposed trustees, although it was not then session under it, as well as by descent. As was said payable; but it matured and was credited on the acby Tilgbman, ('. J., in Overfield v. (hristie, ñ S. & R. count by the parties before the disclosure. If it had 177: “One who enters upon the land of another and been due when the writ was served, and ('lark had recontinues to reside on it, acquires something which

tained possession of it, it might have been sot off pro he may transfer by deed as well as by descent, and if

tunto against the firm's indebtedness; for each partner, the possession of such person, and others claiming being liable for his partnership's debts, may discharge ander him, added together, amounts to the time limi

them with his individual funds if he so elect. Robinted by the act of limitations, and was adverse to him son v. Furbush, 31 Me. 509. who had the legal title, the act is a bar to a recovery."

Nor would the mere fact that tho note way not due Angell on Lim. 414, 420; Wood on Lim., $ 271; Tyler on

when service was made necessarily prerent the set-off, Eject. 910.

provided it was given prior thereto, and was payable In this case there was an adverse and exclusive pos

before the disclosure. To be sure, it is generally true session of the farm in question by Doctor Wroth for

that a trustee's liability depends on the state of facts thirteen years. He then united with George A. Han

as it existed when the process was served on him. But

this rule is not univers:lly applicable. Some apparent son, the remainderman, in a sale and conveyance to

liability may be necessary at that time; but it may be the appellee, who immediately entered and has con

materially modified and even wholly discharged by tinued in possession up to the present time; the pos subsequent events on tho score of equitable set-off session of the appellee, thus added or tacked to the (larrett v. Equitable Ins. Co., 5+ Me. 537, 539; Smith v. possession of Doctor Wroth, makes a continuous ad Stearns, 19 Pick. 20, 23), whero the exception is variverse possession of twenty-seven years. The posses

ously illustrated by Shaw, ('. J. sion under such circumstances is by the statute of

Moreover it has been held that where a supposed

trustee, when the process was served on him, was inlipitations a flat bar to the right of the appellants as

debted to the principal defendant, but he had previously beirs at law. The judgment below must therefore be

at the request and for the benefit of the defendant, in. affirmed.

dorsed without indemnity the latter's note, which, the

Judgment affirmed. defendant having failed, he was legally compelled to pay [130 Mass. 121 ; 119 id. 414; 46 lenn. St. 387; 2 Law, the trustee might be allowed to set off the sum paid on 540; 79 . 233; 9 Eug. 832. ]

*To appear in 76 Maine Reports, 33.

the note against the apparent indebtedness. Boston T. & S. F. Co. v. Mortimer, 7 Pick. 166. And the reason assigned was that if the principal had sued the trustee, although the latter's claim not being then due could not be filed in set-off, yet if at any time before judgment, the plaintiff in the suit had become indebted to him for money paid on a liability incurred before tho suit, which the plaintiff had failed and was unable to pay, the court would grant him a continuance, that he might bring a cross-action so as to have a set-off of judgments or executious, unless there should appear some special cause for refusing such relief. Were it otherwise a trustee's claims might be prejudiced by being made a party, and having them drawn in to be incidentally settled in a suit between other persons. Ilathaway v. Russell, 16 Mass. 476.

This power of setting off judgments has long been practiced by courts. It depends on no positive statutory provision, but is said to rest upon their jurisdiction over suitors and their general superintendence of proceedings before them. Mitchell v. Oldfield, 4 T. R. 123; Juke peace v. Coules, 8 Mass. 151; Pierce v. Bent, 69 Me. 381, and numerous cases there cited. The ap plication of the doctrine not being founded on any statute or any fixeil imperative rule of common law, is addressed to the discretion of courts, which they will exercise on a careful consideration of all the facts and circumstances involved in order to promote substantial justice and protect the rights of all parties. Chipman v. Fowle, 130 Mass. 352. Thus in Boston T. & S. F. Co. v. Mortimer, suprul, Parker, C. J., said: “This decision will not reach the case of a liability incurred after the service of tho writ, or where the effect of the liability may be avoided by reasonable diligence on the part of the person liable to precure payment of the debt by the principal; but wo confine it to such a caso as we have before us, in which there was actual liabil. ity before the service of the writ, and an actual payment by necessity before the answer.

In the case alt bar we perceive no equitable considerations which should induce al court, seeking to protect the rights of all parties, to authorize these trustees to deduct from their indebtedness to the company tho amount of the noto given by the latter to ('lark. The original note was given for a loan to be sure; but it had been repeatedly renewed and it was amply secured. The payment of this note or any of its predecessors could have been enforced at any time; and hence there is no special reason for allowing the set-otf, especially since such a proceeding would entirely ignore the rights of the plaintiff. Such a result would become a precedent for a corporation whose managers might be clisposed thereto, to secure from foreign attachment all moneys due from persons doing business over its road, and thereby without violating tho law delay its creditors.

If ('lark has surrendered his note and security to the corporation, he did it voluntarily and with unecessary promptness. IIad he waited until bis rights had been legally determined on the writ to which he was made a party, his interests would have been more satisfactorily protected perhaps than they seem to have been sun molu. Puiker v. Dunforth, 10 Mass. 300, 305.

We aro aware that the drift of this opinion is in conflict with that in Ingalls v. Dennell, 6 Me. 19; for since the provisions of Rev. Stat., ch. S6, S 6:1, went into effect we do not think a trusteo should be charged on a state of facts stated in that caso. Jurrett v. Equitable Ins. Co., 54 Me. 537, 510.

Exceptions overruled. Apploton, C. J., Walton, Peters, Libbey and Symonds, JJ., concurred.

NEW YORK COURT OF APPEALS ABSTRACT.

DEED-DELIVERY – VOLUNTARY SETTLEMENT.— (1) In cases of voluntary settlements courts have gone great lengths in sustaining the validity of deeds without affirmative proof of any delirery, and the earlier cases hold that a voluntary settleinent fairly made is binding in equity, unless there is clear and decisive proof that the grantor never parted or intended to part with possession of the deed, and that if he retains it, there must bo other facts to show that it was not intended to be absolute. 1 Johns. Ch. 256; Barlow v. Heneage, Prec. in Ch. 210; Clarering v. Clavering, 2 Vern. 47.3; affirmed, 7 Bro. P. ('. 410; Lady Hudson's case, 2 Vern. 176; Johnson v. Smith, 1 Ves. Sem. 314; Exton v. Scott, 6 Sim. 31, and other cases. In all these cases the instrument was shown to have been retained by the grantor until his death, and there were no circumstances tending to show a delivery. This court, in Fisher 1. Hall, 41 N. Y. 416, declined to follow those cases in so far as they wholly dispensed with any evidence of delivery. But the delivery of a deed, like any other fact, may be inferred from circumstances, and the rule as laid down by Chancellor Kent, in 4 Kent ('om. 456, though frequently adverted to and commented upon in adjudged cases, I do not find even to have been questioned. The learned commentator says:

“If both parties be present, and the usual formalities of execution take place, and the contract is to all appearances consummated without any coudi. tions or qualifications annexed, it is a complete and valid deed, notwithstanding it be left in the custody of the grantor." This rule was applied in the case of Scrugham v. Wood, 15 Wend. 515, where it was held that a deed of marriage settlement which was read and signed by both grantor and the trustees, and acknowledged as their deed before an officer authorized to take acknowledgments, was a complete and valid deed, notwithstanding the witnesses present at its execution united in testifying that there was no formal delivery of it, and the deed, after the death of the grantor, was found in his secretary among his private papers. Nelson, J., in delivering the opinion, observes that the grantor was much more interested in the execution and preservation of the deed than either of the trustees, and the fact of its being in his possession at his death therefore did not, under the circumstances of the case, necessarily create any presumption against the idea that a delivery was intended at the time of its execution In the present case, as before observed, there is no evidence that the deed remained in the possession of the grantor. Wher first produced it was iu the possession of one of the cestuis que trustent. It was signed and sealed by both grantor and grantee. In Fisher v. IIill, 41 N. Y. 416, the facts were entirely different. The grantee was not present at the execution of the deed. He did not execute or acknowledge it, but was ignorant of its execution till long after the death of the grantor, who was shown to have retained it till his death. McClean v. Button, 19 Barb. 450 more nearly resembles the present case. See also Fletcher v. Fletcher, 4 IIare, 67. (2) The delivery having been to the grantee himself, neither party would have been permitted to show, for the purpose of defeating the rights of the cestuis que trustent, that the delivery was with intent that the deed should not take effecti, or that it should not take effect unless again delivored, or unless the grantor should afterward determine that it should take effect, or upon any other contingency whatever, contrary to the terms of the in. strument. Worrall v. Munn, 5 N. Y. 229, 238; Lawton v. Sager, 11 Barb. 319; Arnold v. Patrick, 6 Paige, 310, 315. Wallace v. Burdell. Opinion by Rapallo, J. [Decided Oct. 7, 1884.]

320.)

UNITED STATES SUPREME COURT AB E:x parte Virginia, id. 313; E.x parte Rowland, 104 id. STRACT.

612; Ex parte Curtis, 106 id. 375; Ex parte Yarbrough,

110 id. 653. Of course what is here said has uo applicaADMINISTRATOR-WASTE BY — ADMINISTRATOR DE tion to writs of habeas corpus cum causa, issued by the BONIS NON CANNOT RECOVER AGAINST.-The fact that courts of the United States in aid of their jurisdiction an administratrix has improperly paid out money of upon the removal of suits or prosecutions from State the estate, the proceeds of assets administered by her, courts for trial under the authority of an act of l'onor that they have been paid to her agent, does not in gress. Matter of Crouch. Opinion by Waite, C. J. vest the administrator de vonis non with title and ena [Decided Nov. 10, 1884.] ble him to sue therefor. United States v. Walker, 109 U. S. 258. The administrator is responsible therefor

CONSTITUTIONAL LAW-LIQUOR TRAFFIC-REMOVAL to the creditors, legatees and distributees of the estate, FROM OFFICE-QUO WARRANTO IS CIVIL PROCEEDING.– and they only were entitled to sue therefor. United (1) A State law prohibiting the manufacture and sale States v. Walker, ubi supru; Beall y. New Mexico, 16

of intoxicating liquors is not repugnant to the Consti. Wall. 535; Emnis v. Snitb, 14 Fow. 416. If the cases

tion of the United States. Bartemeyer v. Iowa, 18 cited by counsel for appellant (Catherwood v. Cha

Wall. 129; Beer Co. v. Massachusetts, 97 U. S. 25. (2) baud, 1 Barn. & C. 150, and Blydenburg v. Lowry, 4

A State statute regulating proceedings for the removal Cranch C. C. 368) sustain his contentiou, they are in

of a person from a State office is not repugnant to the consistent with the law as heretofore laid down by

Constitution of the United States if it provides for this court, and cannot avail him. W’ilson v. Arrick, bringing the party against whom proceedings are had Opinion by Woods, J. [See 1 Keyes, 18; 81 N. Y. into court, and notifying him of the case he has to

meet; for giving bim an opportunity to be heard in his [Decided Oot. 27, 1884.]

defense; and for the deliberation and judgment of the

court. Kemnard v. Louisiana, 92 V. S. 480. (3) The FRAUD-SALE OF LAND BY ONE JOINT OWNER-ASK

remedy by information in the nature of a quo warranto ING MORE FOR HIS SHARE-ERROR IN CHARGE. - A

in Kausas is a civil proceeding. Ames v. Kansas, 111 party selling a piece of land of which one-balf only is

U. S. 419. Foster v. Kunsus. Opinion by Waite, his, commits no fraud on the otber owners by taking C. J. from the purchaser for his part a price higher than

[Decided Nov. 10, 1884.] what he requires for the rest, if previously to the exeoution to bim of a power to sell procured without MUNICIPAL BOND)—BONA FIDE PURCHASER-NOTICE fraud, he slated bona fide to such owners his intention

- PRACTICE-OFFER OF TESTIMONY-REJECTION-PRE80 to ask a higher price for his part, and received their

SUMPTION.-Purchasers of negotiable securities are not consent to his doing so. It was the duty of the court charged with constructive notice of the pendency to submit to the consideration of the jury the testi

of a suit affecting the title or value of the securities. mong adduced by the defendant to sustain the de-County of Warren v. Marcy, 97 L. S. 96. But in defenses set up in his answer, and the charge should be fense of an action brought by such a purchaser against based on the hypothesis that the defenses which the

a county to recover upon bonds alleged to have been testimony teuded to prove were proven.

Adams v.

issued by it, it is proper to introduce evidence going to Roberts, 2 How. 486; Reese v. Beck, 24 Ala. 651;

show that the plaintiff or his assignor had actual noGrube r. Nichols, 36 Ill. 9:2; Chappell v. Allen, 38 Mo.

tice of a suit peuding, affecting such bonds, before 213, 2:20. The charge having assumed that there was

their purchase by him. It is claimed however that er110 fraud in the procuring of the power of attorney, ror cannot be assigned here on the exception to the ex. and the defendant having subniitted testimony tend

clusion of the oral proof, because the record does not ing to show that there was no fraud in his doings after

show that any witness was actually called to the stand the power of attorney was procured, but that whatever

to give the evidence, or that any one was present who was subsequently done by him in making the sale was

could be called for that purpose, if the court had dedone with the consent of the plaintiffs given in ad

cided in favor of admitting it, and we are referred to vance, it was error to charge the jury that the plaintiffs

the cases of Robinson v. State, 1 Lea (Tem.), 173, and were ontitled to recover, unless the defendant in

Eschbach v. Ilurtt, 47 M. 66, in support of that propoformed the plaintiffs at what price he could sell or had sition. Thoso cases doudoubtedly hold that error cansold his share, and they renewed their consent that he

not be assigned on such a ruling unless it appears that might retain it. Runney v. Burlow. Opinion by

the offer was made in good faith, and this is in reality all Woods, J.

they do decide. If the trial court has doubts about [Decided Nov. 3, 1881.]

the good faith of an offer of testimony, it can insist HABEAS CORPUS-INNOCENCE OF CIIARGE-ISSTING

upon the production of the witness, and upon some atWRIT IX AXOTIIER JURISDICTION.-A prisoner in the tempt to make the proof before it rejects the offer; oustody of a State court of competent jurisdiction, not but if it does reject, and allows a bill of exceptions, illegally asserted, cannot be taken from that jurisdic- which shows that the offer was actually made and retion and discharged on habeas corpus issued by a court fused, and there is nothing else in the record to indiof the United States, simply because he is not guilty of cate bad faith, an appellate court must assume that the the offerise for which he is held. The right of the pris. provf could have been made, and govern itself accordoner to a discharge depends alone upon the sufficiency ingly. Scotland ('0. v. llill. Opinion by Waite, C. J. of his defense to the information under which he is [Decided Nor. 10, 1884.] held, and whether this is sufficient or not is for the court which tries him to determine. If in this deter REMOVAL OF CASE-JOINT DEBTORS IN A MORTmination errors are committed, they can only be cor GAGE-X0N-RESIDENT MORTGAGOR.–The foreclosure rected in an appropriate form of proceeding for that of a mortgage against several mortgagors, some of purpose. The office of a writ of lubeas corpus is neither whom reside outside of the State, the mortgage debt to correct such errors nor to take the prisoner away being a unit, and all the mortgagors, resident and nonfrom the court which holds him for trial, for fear if he resident, being similarly bound, is not such a suit as remains they may be committed. Authorities to this may be removed to a Federal court under the act of effect in our own reports are numerous.

Ex parte

Jarch 3, 1875. ('itiny Fraser Jennison), 106 Watkius, 3 Pet. 202; Ex parte Lange, 18 Wall. 166; Ex l'. S. 194; Removal Cases, 100 id. 457; Pacific R. v. parte Parks, 93 V. S. 23; Ex parte Siebold, 100 id. 371; Ketchum, 101 id. 298; Hyde v. Ruble, 101 id. 107; Win

chester v. Loud, 108 id. 130; Shainwald v. Lewis, id. account of the ship. A secret agreement with a steve158. hyres v. Iiswall. ()pinion by Waite, C. J.

dore that he shall provide and pay for all such rope [Decided Nov. 10, 1881.]

does not prerent a lieu therefor in favor of one who furnishes such rope to the ship on her account, at the

request of the ship's agents, when he bas no knowlUNITED STATES CIRCUIT AND DISTRICT edge or notice of such an agreement. Dist. Ct., S. D. COURT BSTRACT.*

New York, June 30, 1884. The Ludgate Hill. Opinion

by Brown, J. JURISDICTION-CIRCUIT COURT-TRANSFER OF IN

SHIP ANI) SHIPPING-PILOTS-DUTY OF-UNKNOWN TEREST PENDING HEARING-CITIZENSHIP-PLEADING

OBSTRUCTIONS-COSTS.- A pilot is not an insurer. He SUPPLEMENTAL BILL.--G., a citizen of Wisconsin,

is only chargeable for negligence when he fails in due brought a suit in the ('ircuit Court of the United States

knowledge, care, or skill, or to avoid all obstructions for the Western District of Wisconsin, against S.,a citi

which were known or ought to hare been known to zen of Minnesota,and W., a citizen of Ohio, to set aside a

him. The schooner J. B. O., drawing 17% feet of tax deed upon his land, situated in Wisconsin, as a

water, while in tow of the tug J. A. G., ran upon the cloud on his title, and after the case was ready for

edge of an obstruction in the East river, 400 to 500 feet trial and set down for hearing, transferred his entire

easterly from the Nineteenth street buoy (Nes Rock), interest in the land to C., a citizen of Minnesota. Ileld,

near mid-channel. Shortly before the trial, the exthat although ('. could not originally have brought the

istence of a pimacle rock four yards square on the suit, the jurisdiction of the court, having once at

upper surface, and 127, feet below low-water mark, tached, was not divested by the transfer in such a was for the first time discovered and located in the manner that the assignee could not, by a supplemen- precise region where the schooner struck. Helil, that tal bill, or an original bill in the nature of a supple.

the schooner had struck upon the edge of the newlymental bill, filed in the ('ircuit ('ourt, continue the

discovered rock, prerious ignorance of which was not jurisdiction of the court, and retain and preserve the a fault, and that the pilot having pursued the custombenefit of the former proceedings in the suit of G.

ary course, the tug was not liable for the damage; but against the same defendants. Clarke v. Mathewson,

ay the facts seemed to warrant the suit, the libel was 12 Pet. 164; Dum v. Clarke, 8 Pet. 1; Morgan's lleirs

dismissed without costs. Dist. ('t., S. 1). New York, r. Morgan, ? Wheat. 296; Freeman v. IIowe, 24 Hlow.

June 30, 1881. The James it. Garfield. Opinion by 450; Ilus v. llutchinson, 11 iii. 586. Cir. ('t., W. 1).

Brown, J.
Wis., Aug., 1881. Glover v. Shepperol. Opinion liy
Burne, J.

PAYMENT-IN MONEY OR EQUIVALENT-ELECTION

RAILROAD BONDS-RECOVERY OF INTEREST-DEMAND. ('ONSTITUTIONAL LAW-UXCONSTITUTIONAL AMENI)

-(1)Where a promise is in the alternative, to pay in MENT TO VALID ACT—EFFECT OF. --The validity of a money or in some other medium of payment, the constitutional act is not affected by an amendment promisor has an election either to pay in money or the which is unconstitutional, because it discriminates be equivalent, and after the day of payment bas elapsed tween citizens of different States, and which does not without payment, the right of election on the part of iu terms repeal the original act. The amendment is the promisor is gone, and the promisee is envoid, and does not by implication repeal the original titled to payment in money. For various illusact. (ir. ('t., Dist. Ky., Aug. 8, 1881. Matler of Duris. trations of the rule, see McNitt r. Clark, 7 Johns. Opinion by Barr, J.

465; Gilbert v. Danforth, 6 N. Y. 585; Stephens NEGLIGENCE PRESUMPTION FROM ACCIDENT.

v. Howe, 2 Jones & Sp. 133; Stewart r. Donelly, 4 Where a stevedore, engaged in his usual occupation, Yerg. 177; (hoice v. Joseley, 1 Bailey, 136; Butcher falls through an ordinary coal-bunker hatch that is v. ('arlile, 1:2 Grat. 520; Church v. Feterow, 2 Pen. & used for stowing cargo, the presumption is of his neg W. 301; Trowbridgo v. Holcomb, 4 Ohio St. 38; lerry ligence rather than that of the officers of the vessel. v. Smith, 22 Vt. 301; Mettler v. Moore, 1 Blackf. 342. The leaving open a common between-deck hatch (2) By the terms of bonds issued in 1875, by the Texas way while the vessel is lying in port, umder ordi

& Pacific Railroad ('ompany, the company acknowlnary circumstances is not presumptive evidence of edged itself to be indebted to the holder in the sum negligence on the part of the ship. This is not only named therein, which it promised to pay to shown to be the custom by the testimony in this case, or assigns, at the office of the company in New York, but it has been so frequently commented upon ir de on the first day of January, 1915, with interest thereon cisions as to be too well settled to be questioned. The at seven per cent per annum, payable annually on the Victoria, 13 Fed Rep.43; Dwyer v. Nat. Steamship ('., first day of July of each year, as provided in the mort4 id. 493; the ('arl, 18 id. 6335; The Germania, 9 Ben. gagra on the lands of the company, and upon the net 356; The Ilelios, 12 Fed. Rep. 732. While the falling

income derived from operating its road east of Fort through an open hatchway by a stranger, a landsman, Worth, by which payment was secured. The bonds visitor, or passenger on board a vessel might not be further provided that in case such net earnings should presumptive of negligence on his part, where such ac not, in any one year, be sufficient to enable the comcident occurs to a seaman or steredore, who is accus pany to pay seven per cent interest on the outstandtomed to hatchey, their presence, necessity, uses, char ing bonds, then scrip might, at the option of the comacter, and location, the case is different, and unless pany, be issued for the interest, such scrip to be rethe circumstances of the particular case are such as to

ceived at par and interest, the same as money, in payrebut it, the first presumption is of his negligence. ment for any of the company's lands, at the ordinary Dist. (!t., S. 1). Ga., June 9, 1881. The Gladiolus. Opin schedulo price, or it might be converted into capital ion by Locke, J.

stock of the company when presented in amounts of

$10 or its multiple. The mortgage was silent as to SHIP ANI) SHIPPING-MARITIME LIEN-SUPPLIES—

payment of interest or principal, except that it auSILIP'S AGENTS-SECRET AGREEMENT WITH STEVEDORE.

thorized the trustees to sell the lands if default was -A supply of rope necessary for use in unloading a

made in the principal sum at maturity of the bonds, ship, furnished to the ship by request of the ship's

and apply the proceeds to satisfy the amount due. agents, binds the ship to pay for it. The ship's

lleld, that the mortgage did not qualify or control the agents have presumptive authority to procure it on

absolute promise in the bonds to pay interest in money * Appearing in 21 Federal Reporter.

or in scrip; that the bondholders were entitled to pay.

AND

DEMANI)

meut of interest in money, if earned, or if it was not Court of the United States; as in Hipp v. Babin, 19 earned, to the scrip, on the day at which, by the terms How. 271; Parker v. Winnipiseogee (')., 2 Black, 515; of the bonds, the company was to pay the interest, or Watson v. Sutherland, 5 Wall. 74, and many other exercise its alternative; and that after that day had cases. Cir. ('t., Dist. Cal., Aug. 25, 1881. Hlausmeister elapsed, without an election by the company, they v. Porter. Opinion by Sawyer, J. were entitled to be paid in money, and could maintain an action to recover the same, although no presentment of the bonds or demand of payment had

MAINE SUPREUE JUDICIAL COURT ABSTRACT.* been made. There is no distinction in this respect betweeu notes and negotiable bonds. Savannah & M.

EXECUTOR

ADMINISTRATOR
R. Co. v. Laucaster, 6:2 Ala. 555; Philadelphia & B. R.
Co. v. Jobuson, 54 Pem. St. 127. And the rule ap-

WAIVER.-An action cannot be maintained against an plies also to notes payable in specific articles.' Elkins

administratrix for default by her in the performance 5. Parkhurst, 17 Vt. 105; Wiley v. Shoernak, 2 G.

after tbe death of her intestate of the condition of a Greene (Iowa), 205. If the defendant had been pre

bond given by her intestate, unless the claim was prepared to deliver the scrip when the interest matured,

sented in writing and payment demanded thirty days it would have complied with its agreement, and been

before the date of the writ, or this requirement was absolved from liability. The law does not usually ro

waived. Eaton v. Buswell, 69 Me.552; Mc. ('eut. Instiquire the doing of a rain thing, and after the defend

tute v. IIaskell, 71 id. 497; Sterens v. Flaskell, 72 ant had announced that it could not pay the interest,

id. 244. Boothy v. Boothy. Opinion by Symonds, J. and was not prepared to issue the scrip, it would have TRUST AND TRUSTEE-STATUTE OF LIMITATION.-At been a nagatory and perfunctory act on the part of the death of a trustee who had given no bond as such, the plaintiff, when he was entitled absolutely to his if the identity of the trust fund or property is lost, money, to make a formal presentmert of his bonds the cestui que crust stands in the position of a general and a formal demand of payment. Cir. Ct., S. 1). creditor of the estate; or if the trust is not terminated New York, Aug. 26, 1881. Jurlor v. Texas & Pac. R. the estate becomes at once liable to a new trustee wbo Co, Opinion by Wallace, J.

may be appointed, and the special statute of limita

tions applies to the demands for the trust funds as it MANDAMUS-TREASURER TO PAY COUPONS-IF IT LIES

does to other claims against the estate, though a new INJUNCTION DENIED-U. S. REV. STAT., $723.- Where

trustee is not appointed. This is not a proceeding in a writ of mandumus will lie to compel a city treasurer

equity to hold a particular fund or property as charged to pay coupons due on bonds of the city out of the

with a trust, either originally, or by tracing the use of fund provided by statute, or to compel the proper

trust funds or the proceeds of trust property in the officers to set apart taxes collected as a sinking fund

purchase or procurement of it. The distinct statefor the payment thereof, the bondholder has an ade

ment of the case is, that the trust fund cannot now be quate remedy at law, and camot proceed by bill in

traced. The proceeding is by action at law, of asequity, not ancillary to any pending proceeding at law, to enjoin the application of the funds to other devisee; not against a trust fund or property. Such

sumpsit, against the trustee personally, through his purposes. In a case relating to a part of these samo

an action stands upon the same plane, subject to the bouds, the Supreme Court of California, in Meyer v. Porter, 2 Pac. Rep. 884, held that a mandamus should

sanie limitation, as an ordinary action of assumpsit

against the estate of a deceased person. The statute issue to compel the treasurer of Sacramento to pay the

of limitations applies to any trust which is the ground overdue coupons, there being money in the treasury ap

of an action at law. The rule that the statute does not plicable to their payment. So also in the same case

apply to cases where the technical relation of trustee the Supreme Court, sitting in banc in regard to this

and cestui que trust exists, only holes in cases over same class of bonds, unanimously held the writ of

which courts of equity havo esclusire jurisdiction, mandate to be a proper remedy to compel the city an

Wood Lim. 4:?; Godden v. Kimmell, 99 ľ. S. 201; thorities to levy a tax to supply a fund to pay these | Pratt v. Northam, 5 Mason, 93. “Executors are coupons. In this case the court followed the judg- charged with no more in virtue of their oflice, than ment of the Supreme Court of the United States in

the administration of the assets of the testator. If at Louisiana v. Pilsbury, 103 l. S. 302, which directed a

the time of his death there is any specific personal writ of mandamus to issue to compel the city of New

property in his hands belonging to others, which he Orleans to levy an annual tax to pay the interest on

holds in trust, or otherwise, and it can be clearly the bonds then in question. See also Kennedy v.

traced and distinguished from the testator's own, Sacramento, 19 Fed. Rep. 580. This is a remedy at

such property, whether it be goods, securities, stock law direct, speedy, and adequate, and as was stated in

or other things, is not assets to be applied in payment the last case cited, the only remedy in view of the

of his debts or to be distributed among his heirs; but provisions of tho statute under which the bonds were

is to be held by the executors as the testator himself issued and accepted. If it is the duty of the treasurer heid it. But if the testator bas money or other propto pay these coupons out of the funds alleged to be in the treasury, the most direct, speeds, and effective erts in his hands belonging to others, whether in trust

or otherwise, and it has no earmark, and is not disway to obtain payment is by mandamus in a court of

tinguishablo from the mass of his own property, the law. This remedy is complete and adequate. It

party must come in as a general creditor; and it falls would not only prevent the money from being diverted

witbin the chescription of assets of the testator. This is to other purposes, all that this bill seeks, but would

the settled law in bankruptcy and in the administrasecure the payment of the overdue coupons held by

tion of estates." Trecothick v. Austin, I Mason, 29. complainant, and be in itself a full and adequate rem

The present periods of limitation under the statutes edy, while that sought in this bill could only be ancillary to some other remedy in a court of law, to which

are two years, from the executor's notice of ap

pointment, for presenting claims in writing and complainant would be driven at last. Section 72:3,

demanding payment, and two years and six months Rer. Stat., prorides that “suits in equity shall not be sustained in either of the courts of the United States, No. 161; Littlefield v. Eaton, it id. 316. Fowler v. True.

for beginning the action. Whittier v. Woodward, il in any case where a plain, adequate, and completo Opinion by Symonds, J. remedy may be had at law.” And this provision has been often recognized and enforced by the Supreme

* Appearing in 70 Maine Reports.

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