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continued cohabitation after the impediment to a legal A'

ginning. An intercourse originally unlawful and lust- the woman was a common prostitute. Conran v. Lowe, ful from choice undoubtedly raises the presumption 1 Lee, 630-638; Chamberlain v. Chamberlain, 71 N. Y. that its character remains such during its continu- 423-427.

But this is a presumption not of law, but of But the presumption of marriage from cohabitation fact, for the consideration of the jury in connection betweeu a white and a colored person is undoubtedly with the particular facts and circumstances of the case. sufficient to warrant a finding of a valid marriage. In the case at bar it appears that the cohabitation be- Honey v. Clark, 37 Tex. 686; Bonds v. Foster, 36 id. 68. tween the parties had its origin, in part at least, in a However this presumption will not arise wbere the desire for marriage, and under the promise that such statute forbids such marriage. Oldham v. McIver, 49 a relation should be assumed as soon as defendant Tex. 556. could procure a divorce from his then wife. This in- Even divorces have been presumed to sustain a mardicates that the parties regarded the married state as riage made while the partner of one of the parties to a one preferable to that of concubinage, and weakens former marriage was living. Blanchard v. Lambert, 43 somewhat the force of the presumption ordinarily at- Iowa, 228; Carroll v. Carroll, 20 Tex. 731; McCarty v. taching to an original illicit cohabitation. The weight McCarty, 2 Strobh. 6-10; and see generally on this subwhich is to be given to it however in this as in every ject, Best Presump. 144, 145; 1 Bish. Mar. & Div. SS other case, rest, exclusively with the jury in the exer- 514-518. cise of its best judgment under proper instructions

GUY C. H. CORLISS from the court." We think the following rules may be fairly deduced

REPLEVIN-CUSTODIA LEGIS. from the cases cited and reviewed : 1st. That an illicit connection is presumed to con

NEW YORK COURT OF APPEALS, OCT. 28, 1884. tinue until there is evidence to the contrary.

FIRST NATIONAL BANK OF OSWEGO V. DUNN. 2d. That where the parties have manifested a desire

SECOND NATIONAL BANK OF OSWEGO V. DONN. to form a matrimonial union, the presumption will be rebutted, so as to make the question one of fact, by

Where a chattel has been replevied, it may not, while in the the slightest circumstance; and that a mere continu

possession, either of the sheriff or of the plaintiff awaitance of the cohabitation without any apparent change

ing the result of the action, be levied upon by virtue of an after the parties have the right to contract a valid

execution against the defendant. The judgment creditor marriage, will suffice to justify a submission of the

can only claim through the title of his debtor, and the question of marriage to a jury. Nay, the court must

property having been lawfully removed from the possesunder such circumstances submit the question to the

sion of the latter, and being held in the custody of the law jury.

for final adjudication, he cannot disturb it, but is con3d. That where the parties are shown to have pre

fined to such remedy as will not interfere with it. ferred a meretricious connection, something more than

Dunlop v. P. F. Ins. Co., 74 N. Y. 145, distinguished.

PPEAL from order of the General Term, in tbe will

fourth judicial department, made April 19, 1883, the inference of the coutinuance of the original char. which reversed au order of Special Term, staying proacter of the cobabitation. There must be evidence to ceedings upon an execution issued upou a judgment satisfy the mind of an actual change in the relation be- recovered in the action second above entitled, and settween the parties, or at least of a desire for a change. ting aside a levy made by the sheriff of Oswego county Although it has never been authoritatively settled, it in virtue of such execution. is yet safe to assert that should there be any evidence January 7, 1882, John Dumn made a general assignwarranting the conclusion that the parties to a delib- ment for the benefit of his creditors to John Dorsey, erately preferred illicit connection have come to desire Jr., his book-keeper and clerk, who took possession of a matrimonial alliance in place of their former illegal the assigned property,consisting among other things of and lustful union, mere evidence of their cohabitation a malthouse in which were eighteen thousand to twen. as husband and wife subsequently to their change of ty thousand bushels of malt in bulk. Two days later sentiment in this regard would make the issue of mar- the First National Bank brought replevin for ten thouriage one of fact, just the same as though the parties sand bushels of said malt, against Dunn and Dorsey, had desired marriage from the commencement of their which is the action first above entitled. The plaintiff cohabitation.

in that action claimed title under warehouse receipts, 4th. That where there is any evidence to rebut this executed to it by Dunn, on December 13, 1881. Upon inference of continuance of an illicit union, the ques. the mandate in that action, the sheriff of Oswego tion is one of fact.

seized the ten thousand bushels of malt and kept pos5th. That where the parties have manifested a pref- session of it uutil January 13, 1882, when (as no bond erence for an illegal connection, the court is bound to had been given by the defendants and time therefor decide against a marriage in the absence of evidence of had expired) the sheriff went to the president of the a change in the relation between the parties, or of a First National Bank at his banking rooms and told desire for such a change.

him he had come to deliver the malt vamed in the re6th. That to convert an illicit union into a valid mar- plevin papers, and that he did then and there deliver riage the parties must do something more than recog. it (though it had not been separated or removed from nize as valid the unlawful marriage, where consents the other portions of the eighteen thousand to tweuty have been interchanged when an impediment to a law- thousand bushels in the malthouse. The presideut ful marriage existed; they must enter into a new mar. accepted it, and requested the sheriff to separate the riage contract after the impediment has been re- ten thousand bushels and to deliver it at a designated moved.

place, who complied with that request. On the same 7th. Another rule is well settled by decisions which day the Second National Bank recovered a judgment have not yet been cited; and that is that wbere a mu- against John Dunn upon a debt held by it, for $15,tual desire for marriage is, under the peculiar circum- 415.23, besides costs, and forthwith issued an execustances of any case, improbable, the presumption of tion to the sheriff of Oswego county, who was engaged marriage will not be very readily indulged, as where a in separating the malt for the purpose of delivering as countess cohabited with her footman (Forbes v. Strath-requested, he at once levied on the malt in question, more, Ferg. Consist. Law Rep.); or a negro with a white and other property of the assignor and judgment person (Armstrong v. Hodges, 2 B. Mon. 69); or where debtor, January 17, 1882, the First National Bank in.

demnified the sherriff against the claim of the Second which it has power to control, the action loses its charNational Bank.

acter and becomes merely one for damages. Louis Marshall, for appellant.

In Hagan v. Lucas, supra, it was ruled that the S. C. Huntington, for respondent.

property taken on the writ is in the custody of the

law, both while held by the officer, and after delivery FINCH, J. If the General Term were right in sus. to the plaintiff, and so remains during the pendency taining the lery upon the property held under the writ of the action awaiting the final disposition of the of replevin the sheriff occupies a very awkward and court. Aud it was further said that this custody anomalous position, and the law is made to demand a could not be disturbed by any process, and especially seeming impossibility. The sheriff took possession of not by that emanating from another jurisdiction. the malt in obedience to process requiring him to take This case and its doctrine,as stated, were approved by that specific property. The defendants in replevin, the same court in a very recent decision. Covell v. Dunn and Dorsey, not giving a bond for the return of Heyman, 111 U. S. 176. It is true, as the General Term the property within the prescribed three days, it be- say, that the case cited was one in which the writ came the imperative duty of the sheriff to deliver such under which a bond was given for the return of the property to the First National Bank of Oswego, the property was issued from the State court while the plaintiff in the action; while preparing to make such disturbing execution came from the Federal court, delirery, but before it had been actually accomplished,

and the avoidance of a conflict of jurisdictions was asthe Second National Bank of Oswego issued to him an sigued as the principal ground of decision. But at the execution against Dunn, and required him to levy foundation of that conflict was the inconsistency of a upon the same property. He made the levy and so legal requirement that an officer should hold the propfound himself at one and the same instant required to erty for one purpose and yet be compelled to surren: deliver up the malt on one mandate and retain and der it for another. That the hostile mandates came sell it on another. He cannot do both. The two du- from different courts only emphasized the inconsistties, each equally imperative, are utterly inconsistent, ency. and the performance of either inevitably involves the It was early held, and has been steadily maintained, non-performance of the other. The difficulty, too, that property levied upon by an officer, when found in does not end with the sheriff but extends to the and taken from the possession of the defeudant in the plaintiff in replevin. He sues Dunn to recover the execution, cannot be replevied unless in a case where identical property, claiming to be its owner, and ob- the taking was tortious, and the officer liable in trestains for the safety of his title a lawful possession. pass. Thompson v. Button, 14 Johns. 86; Pangburn v. But that safety is weak and brittle 'if Dunn can con- Partridge, 7 id. 142. And that illustrates the differfess a judgment to a creditor, who alleging his debtor's ence between a taking on execution and on a writ of ownership, can again put in jeopardy the possession of replevin. In the former case he is required to take the property. The law compels the plaintiff in the re- only the property of the debtor, and is a trespasser if plevin, as the price of his temporary possession, to be takes that of a stranger; but in the latter be is regive a bond for the return of the property, if such re- quired to take certain specific property, and is not a turn is in the end adjudged, and yet if levies may be trespasser, and cannot be sued for taking it. His posmade in beball of creditors the law prevents the very

session under the writ and his power to obey it are return which it at the same time requires. It is a thus perfectly protected, and his taking is entirely unsimilar inconsistency to which the Federal court called affected by the question of ownership. attention in Hagan v. Lucas, 10 Pet. 404. Justice In Acker v. White, 25 Wend. 614, the property was McLean said: “If the property be liable to execu- levied upon in 1837 as the property of Jessup. Theretion a levy must always produce a forfeiture of the after White took out a writ of replevin and gave the boud. For a levy takes the property out of the posses- necessary bond, but left the property in the possession sion of the claimant and renders the performance of of Jessup. In 1839 Acker, as sheriff, levied upon the bis bond impossible. Can a result so repugnant to same property, while the replevin suit remained unequity and propriety as this be sauctioned ? Is the law decided. White recovered the property from Acker, 80 inconsistent as to authorize the means by which the court saying that “the bond was substituted for the discharge of a legal obligation is defeated and at the goods," and "assuming that the plaintiff acquired, the same time exact a penalty for the failure ?" by virtue of the bond and replevin, the property in

From these inconsistencies there must be some question, then though it still continued in the possesavenue of escape. The right of the Second National sion of Jessup, it would not be subject to execution Bank, as a judgment creditor of Dunn, to contest the against him.'' validity of his assignment to Dorsey, and the alleged The case of Burkle v. Luce, 1 N. Y. 239, cited by the title of the First National Bank by virtue of its ware- General Term, decided only that where the replevin bouse receipt is undoubted. Claiming the malt to be suit had abated, and could not be revived because of in truth the property of Dun, it may levy upon it and the death of the plaintiff, the levy made by the sheriff, seek to maintain its hold, unless met by the obstruc- from whose possession the replevin had taken the tion of an existing custody of the law. That obstruc- property at once revived, and he could retake it from tion the appellants interpose, and assert it to be effect- the possession of the plaintiff's executors. There the dal whether at the moment of the attempted levy the replevin was at an end, and the custody of the law dismalt was in the custody of the officer, or had been de-charged. We fail to find anywhere authority for the livered to the temporary possession of the bank dur- doctrine that by the issue of an execution & sheriff ing the pendency of its proceedings in replevin. The holding property under a writ of replevin can be precise question does not seem to have been decided forced to disobey the mandate of the writ. The case by any court of last resort, but the authorities ap- of successive executions issued to the same officer proacb it from several directions and indicate the prin. stands upon different principles. Even there it is said, ciples which should govern its determination. The that having levied under the first execution, be cannot old action of repleviu and its modern substitute are and does not levy under the second, but its issue to alike in the nature of proceedings in rem. The court him operates a constructive levy. Seymour v. Newton, fastens upon the identical property and holds it sub- 17 Hun, 30. But in such casu he is not charged with ject to its own ultimate disposition. If by its own inconsistent duties, or his lawful possession disturbed. rules it cannot hold the res against other process The later executions in no manner alter or interfere

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with his duty under the first. He can obey all the fraud or express warranty; the law will presume that the mandates, and is not driven to disobey any, but an ex- buyer exercised his own judgment, and the rule of careat ecution following a writ of repleviu sets the officer at emptor applies. once at war with himself.

An exception is found however in cases of executory conThe Code has made provision for the case of a claim- tracts for the manufacture and sale of goods in futuro, ant whose claim existed prior to the replevin ($ 1709), where from the nature of the case it is impossible, or but has made none for a case where, as here, the credi- where by the contract it is the duty of the seller to ascertors judgment was obtained and his execution issued tain and judge of the quality of the article, as when he after the replevin. In such case he can only claim agrees to furnish an article for a specified purpose or of a through the title of the debtor. If there be none in particular kind. him, there can be no right of the creditor. If that Appellant, a manufacturer of steam boilers, submitted to aptitle is already in dispute, he must abide its issue; or pellee a proposal to make for him two boilers, the shells of if need be, in a lawful manner take part in its deter- which were to be made of a particular brand of iron, mination. If the property be lawfully removed from known in the market as charcoal hammered iron of a certhe possession of his debtor, and held by the law for a tain grade. The boilers were made according to the speci. final adjudication, he cannot disturb that custody or fications, and after being used for a time, one gave out by invade it with inconsistent process. He must take reason of an inherent defect in the fron. Held, that the such remedy as will not interfere with the custody seller was not liable as upon an implied warranty. lawfully acquired and maintained. Cases of attach:

PPEAL from Cook Superior Court. The opinion

states the case. to whom the warrant has been issued is to take and retaiu the property till fival judgment and execution. R. Biddle Roberts and F. J. Loesch, for appellant. Hence it is said that property in custodia legis canuot

Abbott, Oliver & Showalter, for appellee. be attached. Drake on Attach., $ 251, and the case of Read v. Sprague, 34 Ala. 101, is cited. There an at- WILSON, P. J. This was assumpsit brought by ap. tachment was placed in the hands of the sheriff, and pellant Shoenberger against appellee McEwen on a before its levy a writ of seizure from a court of chan- | promissory note for $386.24, given by McEwen to apcery was issued to the same officer. He tried to exe- pellant in part payment for two boilers made by apcute both. Of course he could not, and the court held pellant to appellee. that since he could not execute the attachment ex- Appellant was a manufacturer of steam boilers, and cept by taking the property, and the moment he took in response to an invitation from appellee sent to the it the property was the custody of the court under latter a written proposal to make for him two tubular the writ of seizure, therefore the attachment could not boilers for the sum of $1,750. The proposal contained be levied. If the courts of this State have modified full specifications as to the size, mamer of construc. this rule, it is only in a manner which preserves its tion, and the material to be used; and among other substantial elements.

things it was specified that the shells of the boilers In Dunlop v. Patterson Fire Ins. Co., 74 N. Y. 145, were to be made of “5-16 in. C. H. No. 1 iron," by money deposited with the clerk of a court, in lieu of which was meant a particular brand of iron known in an undertaking on appeal, was held liable to an at- the market as charcoal hammered iron of a certain tachment in an action by a third person against the grade. Appellant's bid was accepted by appellee, and depositor. But this went upon the ground that the the boilers were made and put in place in conformity attachment operated not upon the money itself, but with the specifications. After being used for a time upon the intangible right of the depositor to so much one of the boilers gave out by reason of an inherent of it as might remain after the exigencies of the ap- defect in the iron of which the shell was constructed, peal were satisfied; and the court carefully and sedu- caused by improper rolling at the furnace when lously guarded itself against a construction that would made. interfere with the custody of the fund.

Upon the trial in the court below appellee, under the The creditor, ju the present case, must pursue a plea of the general issue and notice of special matter remedy consistent with the sheriff's duty under the re- by way of recoupment, offered proof of damages susplevin, and with the hold which the law has upon the tained by him by reason of the defect in the boiler; property. The issue of his execution gave him a general and under the instructions of the court the jury delien against the property of his debtor. He meets ducted $222 from the amount of the note, and rendered with an obstruction to his levy. We see no reason why a verdict in favor of the appellant for the balance of he may not proceed in equity, making all the rival $177.75. claimants parties, preventing if need be a transfer of No complaint was made as to the workmanship or as the property by the plaintiff in replevin, avoiding a to the manner in which the boilers were constructed: multiplicity of suits, and so determining in one action nor was it claimed that appellant knew of any defect the whole controversy. We think the Special Term in the quality of the iron, por that the defect was diswas right in setting aside the levy.

coverable by any of the tests used by boiler manufacThe order of the General Term should be reversed, turers. The boilers were tested by hydrostatic pres. and that of the Special Term affirmed, with costs. sure before leaving the works to 125 pounds to the

All concur, except Ruger, C. J., taking no part, and square inch, as specified in the proposals. The iron of Rapallo, J., absent.

which the boilers were made was manufactured at a [See 28 Eng. Rep. 197.]

furnace in Pennsylvania, and purchased by appellant, who was not a manufacturer of iron, to be used in

their construction. The only ground of complaint was SALE-CHATTEL PARTICULAR USE LUPLIED

that the iron was unsound and unfit for the purpose WARRANTY.

intended. The court ruled that appellant was liable

for the damage caused by the defect in the iron on the ILLINOIS APPELLATE COURT, NOV. 11, 1884. ground that he was a manufacturer of the boilers, and

as such must be held to have impliedly warranted the SHOENBERGER V. McEwEN.

soundness of all the material used by him in their At common law upon an erecuted sale of specific chattels the construction.

seller is not liable for defects of quality in the absence of The general rule of the common law is that upon an

8

executed sale of specific chattels the seller is not liable as to its quality or fitness, unless it be shown that the for defects in the quality of the article in the absence manufacturer failed to use reasonable and ordinary of fraud or express warranty; where the purchaser is care in selecting it. The rule is thus stated by Mr. not deceived by auy fraudulent misrepresentations Benjamin: “ Where a known, defined and designated or concealment on the part of the seller, and the buyer article is ordered of a manufacturer, although it is demands no warranty, the law presumes that he exer- stated to be required by the purchaser for a particular cised bis own judgment, and the doctrine of caveat purpose, still if the known, defined and designated aremplor applies. A principal exception to this rule is ticle be actually supplied, there is no warranty that it found in cases of executory contracts for the man- shall answer the particular purpose iutended by the afacture and sale of goods in futuro, where from the buyer.” Benj. Sales, $ 657, citing Chanter v. Hopkins, nature of the case no examination of the article is pos- |4 M. & W. 399; Ollivant v. Bayley, 5 Q. B. 288, and nusible; or in cases where the contract is such as to show merous other English and American cases. See also that the duty and responsibility of ascertaining and on the subject generally ALBANY LAW JOURNAL of judging of the quality are thrown upou the seller, as October 11, 1884. where he undertakes to furnish an article for a par- In Hoe v. Sanborn, 21 N. Y. 552, the defendant purticular specified purpose.

chased of the manufacturer a quantity of ciroular saws, In Story on Sales, sec. 371, it is said: “Upon an ex. one of which proved to be worthless by reason ecutory contract to manufacture an article or to fur- defect in the iron of which it was made. The seller vish it for a particular use or purpose, a warranty will warranted the saws to be “good saws and of good be implied that it is reasonably fit and proper for such quality." purpose and use, as far as an article of such a kind can In a very interesting opinion by Mr. Justice Selden, be."

in which he discusses the basis upon whicb implied To the same effect is 1 Pars. Cont. 585 (side); Benj. warranties rest, arguing that they are based upon the Sales, 645, and such warranty includes not only the knowledge of the seller, either actual or imputable to Workmanship, but also the quality and soundness of the him by law, as to the quality of the thing sold, he material of which the thing is made, as well as all la- states as the result of his investigations the rule to be tent defects not knowu to the purchaser, whether this: "The vendor is liable for any latent defeot not known to the seller or not. 1 Pars. Cont. 586; Benj. disclosed to the purchaser, arising from the manner in Sales, 614 et seq.

which the thing was manufactured ; and if he knowIf therefore this were the case of an ordinary pur- | ingly uses improper materials he is liable for that also; chase of a chattel from the manufacturer, or if it had but not for any latent defect in the materials whioh been an order on appellant to manufacture the boilers he is not shown and cannot be presumed to have in question without specifying the kind or quality of kuown.” material to be 11sed in their construction, but the or- This decision, it will be noticed, was in a case where der had been given in sole reliance on the judgment the particular kind of material had not been desigand skill of appellant as to the quality of the material, nated by the person giving the order for the saws, and the law would have implied a warranty both as to the yet it was held that there was no implied warranty Forkmanship and tbe souudness of the iron actually that the material of which the saws were made was used; and this brings us to the inquiry as to how far free from latent defects, in the absence of proof that appellant's liability as upon an implied warranty is af- the vendor knew or might have kuown by the exercise lected by the circumstances that the kind of iron of of reasonable care of such defects; tbat such warranty which the boilers were to be made was specified in extended only to an undertaking by the vendor that appellant's proposal. The proposal having been ac- the saws were free from any defects resulting from cepted by appellee became a contract between the their improper construction. parties binding alike upon each in respect to all its In the subsequent case of Dounce v. Dow, 64 terms and couditions. One of its provisions required N. Y. 411, Hoe v. Sanborn is cited with approval. But appellant to make the shell of the boilers out of a des- a case entirely analogous in its facts to the present is ignated brand of iron. The furnishing of “C. H. No. Cunningham v. Hall, 4 Allen, 268, which was a suit 1 iron " became an indispensable condition of the con- against a ship-builder to recover damages for a breach tract. Appellant could no more dispense with the of contract iu building and completing a ship, which kind of iron designated without violating his contract when partially built the plaintiff agreed to purchase. than he could change the size or dimensions of the It was mutually admitted by the parties that upon a boilers. It was shown upon the trial that there was a true construction of the contract, which had been nebetter quality of iron, known as charcoal bammered gotiated through the medium of a written correspond“flange" iron, but by the terms of the contract appel- ence, the defendant was on the one hand bound, and lant could not use it if he desired to.

He could per

on the other entitled, to use pine plank in planking the form his contract only by using the kind of iron agreed ship, and that pine plank were used for that purpose. upon.

Upon the trial the plaintiff introduced evidence tendIndependent of any adjudications on the subject, it ing to show that the vessel began to leak immediately would seem most unreasonable to hold appellant lia- upon sailing, and that the leak oontinued to increase ble as upon an implied warranty of the sufficiency of until her arrival at the port of destination, when they material designated by appellee himself in the absence were found to be so defective as to require that they of proof showing that appellant knew, or by the use should be taken out and replaced by new. of ordinary diligence in selecting the particular plates The defendant was allowed to introduce evidence used might have discovered, they were detective. The tending to show that pine planks are subjected to lacases bearing upon the subject of implied warranties tent defects, called "heart-shakes," formed in pino are not altogether harmonious, but we think both rea- trees during their growth, and that it is sometimes imson and justice, as well as the weight of authority, sup- possible to discover these defects by the exercise of port the proposition that where one orders an article reasonable care and skill in adapting and fastening of a manufacturer and designates a particular kind of such planks to the frame of a ship. material out of which the article is to be made in The court below instructed the jury that by the whole or in part, such material not being made by the terms of the contract the materials to be used were to manufacturer himself, if the manufacturer use the be reasonably fit and proper for such a ship, and that designated material, the law will not imply a warranty this meant that they should contain no defect which

*

- PAYMENT

OF

could be discovered by the exercise of reasonable care iron agreed upon, and tested the boilers by bydrostatic and skill, but did not extend to natural defects in tim- pressure to 125 pounds to the square inch, as stipulated ber which are incident to its process of growth, and in the contract. From an iuberent defect in the iron which cannot be discovered by the exercise of such caused by improper rolling when made, and which skill and care.

only developed by use, the boiler proved defective. This ruling was approved by the Supreme Court on The plaintiff appears to have used all reasonable care appeal. In delivering the opinion of the court, Mer- and skill in selecting the iron, and was guilty of no rick, J., said: “It is undoubtedly now a well-settled fraud. rule that if an article be ordered of a manufacturer Under this state of facts we are of opinion that the for an especial purpose or a particular use, and he court below erred in holding and instructing the jury agrees to furpish it, and nothing is said by the that the plaintiff was liable as upon an implied warparties as to the materials of or the manner in wbich ranty. it shall be made, there is an implied warranty on his The judgment must be reversed, and the cause repart that it shall be fit for that use. * * But if an manded for a new trial. article or fabric in the particular line of his profession

Reversed and remanded. be ordered of a manufacturer for a special and designated purpose, and the parties agree that it shall be constructed of a certain kind of material, but the se

NEW YORK COURT OF APPEALS ABSTRACT. lection of the particular articles to be used, and the way and manner of using and adapting them to the PARTNERSHIP-LIMITED

CAPITAL, fabric, are left to the choice and the judgment of the NOT IN CASH-ESTOPPEL-JUDGMENT IN REM-BANKlatter without any special stipulations relative thereto,

RUPTCY-ADJUDICATION BINDING ONLY ON PARhe will not in that case be liable for any loss or damage TIES.-(1) Where at the time of the filing of the certifiwhich may result from the imperfection of or natural cate and affidavits for the purpose of forming a limited defects in that kind of material. If the defendant in his

partnership under the statute (1 Rev. Stat. 763, $ 1 et contract with the plaintiffs had simply agreed that he seq.), the special partner had not in fact paid in the would finish and complete the ship then on the stocks sum to be contributed by him, but had given his check and deliver it so finished to thein at a stipulated price, therefor payable thereafter, held, that although the there would have been an implied warranty on his check was duly paid, the misstatement rendered the part that it should be, both as to the workmanship special partner liable as a general partner for all the and materials used in its construction, fit for the ser- engagements of the firm. Durant v. Abeudroth, 69 vice for which it was sold. But the contract was in N. Y. 148; S. C., 25 Am. Rep. 158. A judgment in rem fact modified by a stipulation that it should be planked of a domestic as well as a foreign court, where juriswith pine plank. Under this modification, what avould

diction over the person of a party has not been obotberwise have created a general liability,the defendant tained, except as to his interest in the property afwas bound only to use reasonable care and skill in the fected by the judgment, is not conclusive or blnding selection and preparation in that kind of plank, and upon him by way of estoppel in another action. (2) they could afterward only hold the defendant respon- The general rule as to proceedings in rem is that when sible for damages resulting for his failure to exercise the property is within the jurisdiction of the court reasonable skill and care in the selection of the plank pronouncing the judgment, whether a domestic or which he used."

foreign tribunal, whatever the court settles as to the The court cites with approval Iloe v. Sanborn, supra, right or title, or whatever disposition it makes of the and other cases to wbich it is unnecessary to here property, is valid in every country. Story Conf. L., refer.

$ 592; 1 Greenl. Ev. 543; 2 Wend. 64. But it is not uniIn Beck v, Sheldon, 48 N. Y. 365, it was held that versally settled that the judgment is conclusive as to where a manufacturer of goods which are known in the facts or allegations on which it is founded. In the market, and the different qualities distinguished some of the States of the Union, and especially in the by numbers, contracts to sell and deliver goods from State of New York, though there are decisions to the his factory of certain numbers, in a suit upon the con- contrary in the court of England and in the United tract it is not material whether the goods delivered are States, it bas long been settled that foreign judgments of equal or inferior quality to those of corresponding in rem are conclusive only as to the property involved, numbers manufactured at other factories, or whether and may be controverted as to all the grounds and inor not they are merchantable. If they are the num- cidental facts on which they profess to be founded. bers contracted for as manufactured at the contractor's Vandenheuvel v. United Ins. Co., 2 Johns.Cas.451; refactors the contract is fulfilled.

versing S. C., 1:27. So the judgment even of a neighA leading English case on the subject of implied boring State on foreign attachment, if the defendant warranties is Jones v. Clarke, 3 Q.B.197, referred to by has not appeared and litigated, is treated as a proceedMr. Benjamin, in which the court, upon an extended ing in rem and not personally binding on the party, as review of the authorities, classified the cases on the a decree or judgment in personam. It only binds the subject, and one class is where a defined article is or- property seized or attached in the suit. 1 Greenl. Ev., dered of a manufacturer, although it is stated to be $ 542, and cases cited; Story Confl. L., $ 549. And it is required for a designated purpose, if the thing ordered not conclusive evidence of the debt in another suit bebe furnished, there is no warranty that it shall answer tween the same parties. Phelps v. Holker, 1 Dall. the purpose intended by the buyer. See cases there 251; Betts v. Death, Add. 265. In such cases the accited. See also Kellogg Bridge Co. v. Hamilton, 110 tion is regarded, as to the absent defendant, as a proU. S. 108, where is found at least an indirect recogni- ceeding in rem (Schwinger v. Hickok, 53 N. Y. 280), tion of the same principle.

and it would be contrary to all principle to hold him Numerous other cases of like import to the forego. | personally bound, as to any fact determined in such a ing might be referred to, but as they are cited in the proceeding in his absence, so that he should be forever foregoing cases, it is unnecessary to refer to them here.

precluded from denying it in a subsequent litigation Suffice it to say that in such examination as we have concerning matters other than his interest in the propbeen able to make we have found no cases in conflict erty affected by the judgment. Certain creditors of with those above cited.

the firm presented a petition to the register in bank. In the present case the plaintiff used the brand of ruptcy, setting forth that two days before the filing of

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