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The decree of the White county circuit court in chancery is therefore affirmed, at the costs of the appellant.
COMMERCIAL LAW – NEGOTIABLE PAPER -NOTICE OF PROTEST – WHEN QUESTION OF LAW-PARTNERSHIP — ASSIGNMENT.
BANK OF AMERICA V. FAYETTE SHAW."
Supreme Judicial Court of Massachusetts, July 3,
1. When notice of protest has been actually received in due time by an indorser, the question is, whether due diligence in giving notice has been shown; and this, when the facts are all found, is a question of law.
2. Notice may be given at the place of residence or the place of business; and when the place of business is not the place of domicil, notice at the place of resi. dence is sufficient.
3. Notice should be sent to the place where the party to be notified will be most likely to receive it; and reasonable diligence must be shown in ascertaining where that place is.
connection with the Cairo & Fulton Railroad, for her citizens' profit and convenience; and in the prosecution of this object, and to gain an end so desirable, the town had expended about $18,000. In the course of time, the keeping up the road began to promise a greater outlay than the town was able to make. Her management and control of it, always awkward, inconvenient, and embarrassing, had now become impracticable. The usual fears of monopolizing demands on the part of the Cairo & Fulton road began to seize the minds of the people, begetting the idea of extending the tap road to West Point, the head of steamboat navigation on Red River, so as to destroy or prevent the apprehended monopoly. A sale of the road was not only desired, but was inevitable. To carry out the original design, keep up a connection between the town and the Cairo & Fulton road, to substitute steam for horse power, and to extend the connection to West Point, in answer to the demands of the citizens, and by the payment of $500 in addition, the Yarnells became the purchasers of the road, and the evidence goes to show literally complied with their obligations; and, in doing so, expended about the sum of $30,000. This, certainly, was not such a want of consideration-such an inadequate consideration-as will cast a shadow of suspicion upon their dealings; certainly not such as would invalidate the sale.
Finally, the town of Searcy, having authorized and made the sale through her acknowledged agents; having stood by and seen, without warning or objection, the appellees expend their time, labor, and means in carrying out their part of the contract; and having waited for a period of nearly five years in apparent acquiescence, when at length the affairs of the road, perhaps under the judicious management of her enterprising citizens, the appellees, had atsumed the air of thrift and properity,-instituted this action to recover back from them that which she had sold to them, and for which they had paid ber such a price. It is not the odious plea of the statute of limitations that is interposed against the appellant's claim. It is a plea of estoppel,-a plea that has for its object the assertion of the principle that one is not to be permitted to profit by his own wrong, or to possess bimself, as his own, of the proceeds of another's labor, which he has caused him to expend.
The appellant waited until she was no longer able to put the appellees in statu quo, if, indeed, she ever was; and, worse still, she does not even offer to do so. There is not equity in a bill which seeks, and does not offer, to do equity; nor is there equity in the case of a complainant who deliberately waits until he is no longer able to do equity; nor is there equity in the case of a complainant who deliberately waits until he is no longer able to do equity, and then brings his suit, demanding equity. Such is the nature of the case under consideration, as it appears to us.
4. When the indorser of a note is a partnership, notice to one partner is notice to all; and where they reside at different places, distant from the place where the business is carried on, notice should be made at their place of business.
5. Where the firm has made an assignment to a trus. tee in trust for the benetit of its creditors, who occu. pies its place of business; and leaves an agent who had charge of the management of its affairs, and the resident partner has absconded and concealed himself to avoid arrest on civil process; notice upon him at his place of business, in charge of his trustee is sufficient.
FIELD, J. delivered the opinion of the court.
The report in this case raises the question of the sufficiency of the notice given to F. Shaw & Bros. indorsers of certain promissory notes, that the makers had on demand refused payment. The report finds that Fayette Shaw and Brackley Shaw constituted the firm of F. Shaw & Bros.; that no service of the writ was made upon Brackley Shaw, who was out of the Commonwealth; that Fayette, Shaw, who alone was served with process and alone defended the suit, before the notes matured “had left the country to avoid liability to arrest upon civil process," and was at the maturity of the notes in hiding in Canada; and only "Mr. Morse, one confidential friend, and Mr. Shaw's immediate family knew of his address at that time." "Before he left Boston" for Canada, he "left his address with Mr. Morse, his counsel there (in Boston), who had charge of his business and
*S. C. 2 New England Reporter, 572.
bis affairs, and it was understood between them business of said firm for the completing of the that Mr. Morse should send him anything relating manufacture of stock now on hand and otherwise to his affairs that he deemed important.
so far as shall be necessary and proper for the also understood that everything that was addressed faithful and economical administration-of the to him or to F. Shaw & Bros., at No. 268 Purchase trusts herein and hereby declared and imposed on street should be turned over to Mr. Morse." him, or shall be requested by the beneficiaries”;
“At the time the plaintiff's notes became due, third, to pay the proceeds (after deducting the exdefendants had no place of business in Boston or penses) equitably and ratably to the creditors; elsewhere in this Commonwealth, but their sign fourth, to pay the balance to Fayette Shaw ard remained over the door at No. 268 Purchase street Brackley Shaw, or to the survivor; and it was and Wyman, their assignee, was there in the per- provided that Wyman “shall have power in and formance of his duties, under the instruments of concerning the premises, to use the name of them assignment." F. Shaw and Bros. had done busi- or either of them and of said copartnership, and, ness at No. 268 Purchase street, in Boston, until as their attorney irrevocable, to do all things in they became ipsolvent and assigned their prop- and touching the same which they or either of erty to Wyman by instruments, copies of which them might lawfully do if personally present had are annexed to the report. “A notice of protest these presents not been executed." in proper form upon each of the plaintiff's notes The assignment is upon the condition that if was duly sent to 268 Purchase street, addressed to they or either of them “shall hereafter make any F. Shaw & Bros., but these notices were not sent arrangements with their creditors, whereby such from there to the defendant or his counsel, and creditors or a large majority of them consent that the defendant had no knowledge of them, and no said property or any portion of the same shall be other notice was given him or Brackley Shaw of reconveyed to” them or either of them, Wyman the dishonor of the notes."
shall convey the same "to the parties entitled “Soon after the defendant went (to Canada)
thereto under said settlement or arrangement with said Morse was informed by Mr. Wyman that no
creditors." tices of protest for F. Shaw & Bros., were pouring The second assignment was subsequent to the in by the bundred, and he told Mr. Wyman, in first between the same parties and of the same substance, that he need not do anything with property, and it provided for a sale of the propthem, and said Morse never saw any of them, nor erty, the payment of the proceeds after deducting sent the defeudant any communication regarding the expenses ratably to creditors, and the paythem, although he was in constant correspond
ment of the balance remaining to the Shaws, or ence with him about his business affairs."
the survivor of them, with a power to do "all It is also found that, for several years prior to things in and touching the premises, which the the indorsement of the notes, Fayette Shaw had Shaws might do if personally present." his domicil in Newton, in this State, “and it has
This case has been argued by the defendant as remained there ever since.” “The plaintiff knew
if the Shaws had gone out of business and one of of the defendants' insolvency and of the assign
them had retained his residence in Newton, but it ments to Wyman before the notes became due, but
is plain that they were still interested in the manit had no knowledge that the defendants ceased to
agement of the trust, and that what remained of have a place of business at No. 268 Purchase
their business was still carried on at No. 268 Purstreet, unless such knowledge is to be inferred
chase street, Boston, even if “they had no place from knowledge of the assignment."
of business there, or elsewhere in this Common“The plaintiff had no notice or knowledge of wealth," and that the defendant was an abscondany other address of the defendant or of Brackley ing debtor in concealment without the CommonShaw, and there was no evidence that the plaint- wealth. It is important that the law of negotiaiff knew before commencing this suit that Fayette ble paper be definite and certain, and when notice Shaw or Brackley Shaw had or ever had a resi- has not been actually received in due time by an dence in this Commonwealth, nor was there any indorser, the question is whether due diligence in evidence thar the plaintiff had made any effort giving notice has been shown, and this, when the to find out the residence of either Fayette Shaw facts are all found, is a question of law. Notice or Brackley Shaw."
may be given at the place of residence The first assignment was by Fayette Shaw, of
the place of business, and when Newton, Massachusetts, and Brackley Sbaw, of the place of residence is not the place of domicil, Montreal, Canada, doing business under the style notice at the place of business is sufficient, alof F. Shaw & Bros. to Ferdinand A. Wyman, of though it has not been decided that notice at the the property of the firm, in trust; first, if said place of domicil is not also good. The facts may Shaws, or either of them, be adjudged insolvent indeed be such as to make it difficult to determine debtors, to convey to the assignee in insolvency what is the place of residence or the place of bussuch of the property as the assignee would be en- iness, or whether there is any place of business titled to if the assignment had not been made; distinct from the place of residence, and courts second, to produce the property to money by sel- must deal with such cases as best they can. The ling it with the right in Wyman “to carry on the guiding principle is that notice should be sent to
the place where the party to be notified will be most likely to receive it, and reasonable diligence must be shown in ascertaining where that place is. When the indorser is a partnership, notice to one partner is notice to all, but as the partners may reside at different places, and sometimes far distant from the place where the business is carried on, a notice at the place of business, if there is such a place, is plainly the better, because there the partnership can best consult and act, so as to protect itself from loss.
In Chouteau v. Webster, 6 Met. 1, "the defendant's general domicil and place of business were in the city of Boston, where he had at all times an agent who had charge of the management of his affairs,” but “he was actually resident in Washington, in discharge of his public duties as Senator," and the court held “that notice to the defendant addressed to him at Washington was good and sufficient notice of the dishonor of these notes."
It did not appear, as a fact, that the notice had been actually received by the defendant. The court distinguished between domicil and residence and found the decision upon the circumstances of the case, and the general rule “that notice shall be so given and at such a place that it will be most likely to reach the indorser promptly." See Young v. Durgin, 15 Gray. 264.
It is also plain that Morse, who had charge of the defendant's business and affairs, did not mean that the defendant should actually receive the notices of protest, although he was informed where they were sent. On the facts found by the court, if the plaintiff had known them all, it must have been considered more likely that the defendant would receive the notices if sent to 268 Purchase street, Boston, than if sent to Newton. It does not appear that the defendant had any agent at Newton, or anything there but a naked domicil, while he was concealed in Canada; even if his family were there, which does not distinctly appear, it is not found that they had any authority over his business or the business of the firm.
In Bliss v. Nichols, 12 Allen, 443,the court says: “But the broader and more precise ground on which the sufficiency of the evidence of notice in this case rests is this, that the being drawn in the partnership name, notice to the partnership, while it continued, was notice to all the members; that the holder, having had no notice of the dissolution of the partnership, had a right to treat it as subsisting; and that the notice sent by mail addressed to the partnership at its place of business, and where the draft was drawn, was there duly received by the agent employed to settle the partnership affairs." The execution of the assignment in the present case did not necessarily dissolve the partnership, and the notes were all expressly made payable in Boston. It may be said that Wyman was not the agent of the firm to receive notices of protest of notes so as to bind the members of the firm personally, but the no
tices were not addressed to Wyman, but to the firm of its former place of business, where its affairs were being settled in accordance with the assignments, and there was, so far as appears, no other place of business of the firm or of the defendant, and his actual residence was without the Commonwealth and unknown. We are not required to decide whether notice addressed to the defendant or to the firm at Newton would, under the circumstances, have been a good notice, or whether, in all cases, the holder of a note may assume that the place of business of an indorser continues the same from the time of indorsement to the maturity of the note, unless he knows, or has reason to know, that it has been changed. On the facts of this case, we think it was the duty of the court below to rule that the notice was good, because it was sent to what had been the place of business of the firm where its affairs were actually in process of settlement under the trust. It was the place where the defendant expected that notices and letters would be sent to him, and had arranged that, if sent there, they should be handed to Mr. Morse, who alone had charge of his business and affairs, to be forwarded to him in Canada, if Mr. Morse deemed them important, and there was no other place of business of the firm or of the defendant, and he had absconded.
Although, perhaps, it may be assumed that the defendant's family remained in Newton, and although the court has found that the defendant's domicil was there, which must mean that he intended to return there when he thought he would be safe from arrest, yet under the decision in Grafton Bank v. Cox, 13 Gray, 503, we think, on the facts, a demand at 268 Purchase street would have been good, if the defendant had been the maker of the note, and the law governing a demand upon the maker is somewhat more strict than that governing notice to an indorser. See Pierce v. Cate, 12 Cush. 190.
We find it unnecessary to express any opinion upon the correctness of the ruling of the court, upon the admissibility and effect of the proceeding in insolvency or in the suit in equity, as that ruling, if erroneous, has not harmed the defendant. By the terms of the report it is only if the defendant has been harmed by any ruling of law, that the finding is to be set aside and a new trial ordered.
Judgment on the findings.
1. AGENCY. – Principal and Agent - Accredited
Authority – Liability of Principal for Agent's Acts within Scope of the Agench.-If one holds another out to the world as his agent, he is bound by such agent's acts, done within the scope of the agency, without regard to the authority intended to be given such agent by the principal, provided third persons are justified, from the acts of the principai, in believing the agent had authority for the acts done. Griggs 0. Selden, S. C. Vt., Aug.
21, 1886; 5 Atl. R. 504. 2. ATTACHMENT.-Intervention-Removal of Cause
- Suit againt United States Marshal Attaching Goods.-An attaching creditor who has indemnified the officer may defend or prosecute in the name of such officer, but has no right to intervene, and be made a party to the record. A United States marshal who has taken goods on attachment, and is sued in the State courts for conversion, has no right, as such marshal, to remove his defense into the Federal courts. Mckee v. Coffin, S. C. Texas, June 6, 1886; 1 S. W. R. 276.
subscribers, there is a mutual liability, and the cosubscribers may maintain an action against one who refuses to pay. Grand Lodge Good Templars v. Farnham, s. C. Cal., July 1, 1886; 11 Pac.
Rep. 592. 5. CONTRACT.- Consideration-Promise to Pay a Debt for which Promisor is Already Bound-Release of Groundless Claim-Mortgage-Consideration-Release of Void Levy.-A promise to pay a debt for which the promisor is already bound, is not such a consideration as will support a contract. The release of an utterly groundless claim is not such a consideration as will support a contract. Where an execution issued against the execution debtor is levied upon the property of a third person, and there was no color of right for such levy, its release will not constitute such a consideration as will support a mortgage executed by the owner of the property. Harris v. Cassaday, S. C. Ind.,
June 19, 1886; N. East. R. 29. 6.
Patent Royalty.-Under a clause in a contract, between a patentee and a company which agrees to manufacture the patented instrument and pay him a royalty, that the company shall pay him at least a certain sum annually for royalties or forfeit the right to manufacture if he shall so elect, the undertaking of the company is not absolute to pay such sum in each year, if the specitied royalties do not amount thereto. The company has the alternative to pay the excess over the royalties on the instruments manufactured up to the sum mentioned, or to refuse to pay beyond the amount of such royalties, subject only to the hazard of forfeiting its right to manufacture at the election of the patentee. Wing v. Ansonia Clock Co., N. Y.
Ct. App., June 1, 1886; 3 Cent. R. 745. 7. CORPORATION.- Municipal Corporations-Highway – Deject Collision Personal Injuries – When Defect is Sole Cause of-Due Care Question for the Jury.-A. and B. were driving, in the town of H. upon a highway which was of defective construction at a certain point, and, when opposite the defect, A. turned his horse to one side to avoid contact with an approaching back, but, in consequence of the defect, could not turn sufficiently to avoid the hack, which collided with the buggy in which A. and B. were riding, and B. was injured. Held, that, in the absence of negligence on the part of the driver of the hack, the defect was the sole cause of injury, and that the town of H. was liable for the injuries sustained by B. The question of due care is a question for the jury. Flagg v. Town of Hudson, S. J. C. Mass., July 3, 1886; 8
N. East. Rep., 42. 8. Municipal Corporations, Mayor of City
-Authority-Control of Police Force.- The mayor of a city, who is made chief executive officer thereof, and whose duty it is to see that all laws of the State and ordinances of the city are observed within the city limits, must necessarily possess control and supervision over the police and local constabulary. Under such circumstances, a resolution adopted by the board of police commissioners, whereby they take from the mayor all control over the police force, and assume that control themselves, will be absolutely void. Francis v. Blair,
S.C. Mo., June 21, 1886; 1 S. W. R. 299. 9. CORPORATION- Municipal Corporations-Streets
- Personal Injuries-Acts of Residents.-A person injured by the breaking of a plank, placed across a gully in a public street by the residents of
3. CARRIER.-Duty to Passenger at Depot.-When
a railroad company provides a platform at its station in such a manner as to invite passengers to walk over it while waiting for trains, or wbile preparing to leave the station, it is bound to exercise due care towards such passengers while upon the platform. The fact that a passenger had started to leave the platform at a place not intended for that purpose, with a view of crossing the track at a point where she had no right to cross it, will not relieve the company from liability for an injury to such passenger, caused by the negligence of its servants, while she was still upon the platform. Keefe v. Boston, etc. CO., S. J. C. Mass., July 3,
1886; 6 East. R. 400. 4. CHARITABLE Uses.- Subscription- Effect of
Acceptance.--A promise to pay a subscription to some charitable object is a mere offer, which may be revoked at any time before it is accepted by the promisee; and an acceptance can only be shown by some act on the part of the promisee, whereby some legal liability is incurred or money is expended on the faith of the promise. If the promisor dies before his offer is accepted, it is thereby revoked, and cannot afterwards, by any acts showing acceptance, be made good as against his estate; but the rule is otherwise when subscribers agree together to make up a specified sum, and where the withdrawal of one increases the amount to be paid by the others. In such case, as between the
the neighborhood, but without the authority of the city, and at a place where the gully was not a part of the sidewalk or travelled way, cannot recover damages from the city for such injury. Fortune v. City of St. Joseph, S.C. Mo. 1 S. W. 287.
14. DAMAGES-Exemplary Damages-Wife's TortHusband's Liability.-Exemplary damages are recoverable in an action against a husband and wife for the malicious tresspass of the wife, even though the husband be free from blame. Lombard v. Batchelder, S. C. Vt. Aug. 21, 1886; 5 Atl. Rep. 511.
10 CRIMINAL LAW-Indictment-Conviction of Less
er Offense.--On the trial of an indictment it is competent for the jury to acquit of the offense charged, and at the same time convict of an attempt to commit such offense, or to convict of any offense necessarily included in the offense charged. Lang v. State, S. C. Tenn., June 10, 1886; 1 S. W. Rep., 318.
Plea of Guilty- Agreement With Prosecutor that Sentence May be Withheld.-After an accused, who is of age, enters a plea of guilty, the court must either sentence him at the time, or place him in the custody of the sheriff until such sentence; and an agreement with the prosecuting attorney, under sanction of the court, that the accused may remain at large without sentence so long as the offense is not repeated, is unanthorized, and of no effect in aid of the accused. Gray v. State, s. C. Ind. June 23, 1886; 8 N. East, Rep. 16.
15. DEED-Condition-Covenant.-The provision in
a deed: “But, nevertheless, this grant and conveyance is made with this limitation and qualification, and on these express conditions, that is, at any time hereafter, any building shall be erected on said tract or any part thereof, whose first cost shall be less than $4,000, and which shall be used for any other pui ose than a dwelling house; or if said tract shall be used for any other purpose than a meadow or park, then the whole of said tract shall be at once forfeited and revert to the grantor his heirs and assigns forever"—is a condition, and not a restriction merely or personal covenant. А quitclaim deed from the grantor to the plaintiff's grantor released to him the right of entry and destroyed the conditions, and makes the title absolute in the plaintiff, including the right of reversion; the right to enter for condition broken being assignable by statute. Gen. Stat. part 6, p. 47, $ 1. Hoyt v. Ketchum, S. C. Conn. June --, 1886; 2 N.
Eng. Rep. 557. 16. EQUITY-Parties--Joinder -- Mortgage -- Fore
closure Trust Deed-Statute of Frauds.--A court of equity, even after a final hearing on the merits, and on appeal to the court of last resort, will compel the joinder of necessary parties de. fendant. A strict foreclosure is not allowed or recognized by the courts of Missouri. Every mortgage debtor is allowed his day in a court of equity. Where the owner of a trust deed fore. closes the same, and buys in the premises at a nom. inal or grossly inadequate sum, under a verbal agreement to hold said premises in trust, and ex; pose them at public sale, and render the surplus proceeds, after satisfying the debt, to the mortgagor, equity will compel the creditor to carry out such agreement before allowing him to enforce papment of the note accompanying the trust deed. O'Fallon v. Clopton, S. C. Mo, June 21, 1886; 1 S. W. Rep. 302.
Practice-Continuance and Ad. journment- Adjournment From Day to DaySheriff's Powers Under Statute-Grand JuryTestimony Before, Admissible in Rebuttal, When. -Court may be opened by a circuit judge on the first day of the term, and an order entered that, if no circuit judge of that circuit be there, at five o'clock P. M., of that day, the sheriff shall adjourn the court until the succeeding day. If, at any time, no judge is present, the sheriff, under $ 20 of the circuit court act, (1 Starr & C. S. c. 37, par. 60,) may open and adjourn the court from day to day by proclamation in the court house, and notice posted on the court-house door. The adjournment for the first day, under such order, needs no such proclamation or notice. It is admissible to discredit a witness by proving, by a grand juror, that such witness testified differently before the grand jury. The secrecy of the proceedings of the grand jury has been so far relaxed. 1 Starr & C. St. c. 38, div. 11, § 10, p. 859, par. 472. Bressler v. People,
S. C. Ill. Aug. 15, 1886, 8 N. East. Rep. 62. 13. CRIMINAL PRACTICE-Evidence-Inaccuracy not
Misleading as to Evidence, not Fatal-Mandatory Words in Instruction as to Effect of Evidence Disapproved-Sentence-Opportunity to Object toDeprivation of, Not Fatal in Minor Felonies.Whether an inaccuracy in an instruction is ground for reversal in a particular case depends quite as much upon the evidence before the jury, to which the instruction might be applied, as upon the abstract accuracy of the language of the instruction; and so, if it is apparent that the language of the instruction, though inaccurate, yet, when applied to the evidence before the jury it could not have misled the jury, the inaccuracy will not be ground for reversal. An instruction telling the jury that in certain contingencies they should disregard certain evidence, beld, properly refused. “May” ought to have been used instead of “should.” In minor felonies the failure to give the prisoner opportunity to say why sentence should not be passed upon him is not ground for reversal. The court limit the decision as not applying to a capital case. Bressler v. People, S. C. Ilı. Aug. 15, 1886; 8 N. East. Rep. 62.
Parties--Same Subject-Matter--Reser. vation--Issues.- Where two suits have been brought between the same parties, relating to the same subject-matter, but in the second suit the parties to the first suit are reversed; the suits are brought in different counties; the second bill is not a cross-bill in form, and does not refer to the first bill, nor recite its proceedings; and the facts in the two suits, is determined on bill and answer, are not the same-the suits cannot be determined upon reservations of the two suits together, each upon bill and answer, and the causes must first be heard upon the issues. Quincy, etc. Bank v. Tansey, S. J. C. Mass. Jnly 1, 1886; 8 N. East. 49.
Practice- When bill in will not be considered Multifarious.--A bill is not multifarious, because it joins as defendants some of the sureties on two bonds given for successive terms, alleging that the collector kept but one running account, to which collections were applied indiscriminately. In rendering the opinion of the court upon this point, Somerville, J. said: “The first and second bonds are, in effect, but legally one under the statute, the sureties on the additional