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York, in a State court of New York, against a bank located in Boston. HM,
(1) that the defendant was a dtlsen of Massachusetts within the meaning of
the act relating to the removal of causes into the federal courts ; (2) that the
cause could not be remoyed bj the bank into the federal court, under the act
of March 2, 1867, as being a corporation, it could not make the affidavit required
by the act. 1878. Cook y. State National Bank (52 N. Y. 96), XI, 667.

20. Appeal from order q£ ramovaL An order of a State court, transferring
a cause to the federal courts under the act of congress of March 2, 1867, is an
appealable order, and the State courts haye jurisdiction to hear and determine
the appeal. 1869. ulAk9rZ<^ y. FOot (24 Wis. 165), 1, 166.

21. The application of a party to remove a cause to the Circuit Oourt of

the United States is analogous to a plea to the jurisdiction of the State court,
and, when granted, the party against whom it is taken has the right to appeal*
'fhe case would be diderent if the application to remove is refused. In the
latter case no irreparable injury would follow, and the appeal would not be
allowed. 1871. 8taU v. The Judge of the Thirteenth Judicial Dietriet (28 La.
An. 29), Vm, 588.

22. A mandamus will therefore issue, on application from the Supreme

Court directing a judge of the District Court to grant an appeal from an order
transferring a cause to the Circuit Court of the United States, if the case is, in
other respects, appealable, lb,

23. Rmnoval on affidavits of pndadloa. Where it appeared from the nfflda-
vit of a person of color, charged with a capital offense, that he could not have
full and equal benefits of all laws and proceedings for the security of person
and property as is ei^joyed by white citizens, and that his rights cannot be
enforced in the State courts : Held, that under the act of congress of 9th April,
1866, the State courts will proceed no further in the prosecution until certified
of the action of the Circuit Court of the United States under the act of con-
gross, March 8. 1868. 1871. .Stoto v. 2>unlap (65 N. C. 491), YI, 746.

24. It is erroneous in such a case to order the removal oi the indictments

to the Circuit Court of the United States ; but to suspend proceedings in the
cause till certified to the court under the aforesaid act of congress, lb.



1. Bond — void far want of Jnxlsdiotioii — estoppoL Defendants execute4
a bond for the purpose of procuring a writ of replevin, which bond a justice
of the peaoe approved and thereupon issued a writ of replevin for certain
property in plaintiff's possession, and whidl he claimed to own. The property

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wms taken under the writ The value of the property exceeded the amoimt
for which the jostice of the peace had jariediction, and on the hearing of the
cause the jxuitice diBmiseed the proceedings on that gronnd, and directed a
return of the property to the plaintiiT. The defendants refusing to return the
property, this action was brought upon the bond. HM^ that the justice not
haying jurisdiction of the subject-matter, the bond was void and no action could
be maintained thereon, and that the defendants were not estopped by the
recitals in the bond. 1872. OsiT^^ v. I>ttd^«<m (88 Ind. 512), X, ld6.

2. Damages in action c/L In replevin of property having a usable value
(as a horse) the value of its use, during the time of detention, is a proper item
of damages. 1878. AUen v. Fox (51 N. Y. 562), X, 641.

8. Against ezeontion creditor. An officer, under a general promise of
indemnity, but without direction from the execution creditor to levy upon any
specified property, seized chattels in execution under a void judgment. In
replevin against the officer and the execution creditor, it appearing that the
latter never had possession of the goods ; hM^ that the action could not be
maintained as to him. 1872. Orace v. MitchtU (81 Wis. 588), XI, 618.

4. By ▼•ndor lor fraud. The vendor of goods who has been induced to
part with them through such fraud on the part of the vendee as annuls the
sale, may replevy them of the vendee's general assignee. 1872. Farley v.
Lincoln (51 N. H. 577), Xn, 182.


L Of ELBCTORS^iSM Blbctiov.



The sheriff's return on a summons was that he had served it by leaving a
copy thereof at the usual place of residence of the defendant. On a motion
to set aside the return, hsld, that evidence was admissible to show that the
place where the summons was left was not the defendant's residence. 1871.
Bond V. WUaan (8 Kans. 228). XII, 466.

REVENUE STAMPS — 5;5tf Stamps.


1. Action to reooTer — parties. The selectmen of a town, under the authority
of a general statute, offered a reward for the apprehension and conviction of a
person guilty of the commission of a high crime. The plaintiff, claiming to
have performed that service, brought action to recover the reward. Hdd, on
demurrer, that the action was well brought. EM, also, that if two persons
jointly performed the service they must be joined as plaintiffli. 1868. Janwin
v. Town of Erstor (48 N. H. 83), II, 185.

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2. Sheriff may daim. Plaintiff, a sheriff, captured a criminal without pro-
3888 and in reliance apon a general reward offered. Held, that the fact that he
was a sheriff did not prevent his reooveiy of the reward. 1870. Davi$ v.
Munson (48 Vt. 676). V, 815.

3. Saftisfiiotion of— koowl^dg* ol tha reward. The plaintiff recovered
property stolen from the defendant and returned it to him. Defendant handed
him some money, saying " here ia something for what jou have done." Plain-
tiff did not at the time look at the money, but afterward found it to be $9.
Defendant had on that morning offered a reward of $50 for a recovery of the
property, of which fact plaintiff was at the time ignorant, but for which reward
he brought this action. HM, that he could not recover. 1870. Marvin v.
Treat (87 Conn. 96), IX, 807.

4. In order to entitle a party to recover a sum of money, ofimd as a reward
lor the recovery or information leading to the recovery of property lost, he
must establish between himself and the person offering the reward, not only
the offer and his acceptance of it, but his performance' of the service for which
the reward was offered, finding the property and advertising it, by one who
did not know of the ofitur, and could not have acted in reference to it, does not
enUUe him to recover. 1878. iT^ytotond v. Xouiufo (61 N. Y. 604), X, 654.

KIPARIAN OWNER— i6^ Water usm Wjltkbmx}vrbbb.

RIVER— i6!M Water and WATER-ooTmsES.

ROADS — See Hioh watb.

ROBBERY — Sm Criminal Law.




m. Fraudulent bale.
IV. Conditional bale.
V. Warranty.


Vn. Action for the price.
VIIL Of lands — See Oonvbtance.
IX. Of ooodb—zSm Vendor and Purohabee.

I. When complete.
1. To plaoe articles sold at bnsreHs risk, delivery and acceptance must be
such that nothing remains to be done by either party in respect to them ; and
where the sale is of a quantity of things by count, measure or weight, their
number, quantity or weight must be determined before the sale is perfect, in
the absence of an express intention to the contrary ; and the same rule applies
when delivery is to be' made of the sold articles by installments. 1871. iVss-
eoU V. Loeke (51 N. H. 94), XII, 55.

Digitized by


^0 SALE.

S. Defendant agreed ermUjtohny of plaintiff ti^at walnut epokes he

dionld saw at his mill, not exceeding 100,000, at $40 per thooeaDd. to be dellv-
ered-at tiie mill In lots of about lOiOOO each, subject to defendant's selection,
each lot to be paid for on delivery. Nothing was said about counting, but each
paaly ^understood that he was to oount them alter seleoHon. The defendant
selected the first lot but did not ocrant them. The plaimtlff afterward counted
those selected and charged them to defendant, but did not inform defendant c f
the number. The spokes having been burned, hdd, in an action for their value,
that the sale was not perfected, and that the title to the propertj remained In
piialntiff. lb,

3. When title passes — qnestlon liar Jury. T. sold to plaintiff part of a grow-
ing crop of com, designating the part sold bj cutting off the tops of one row.
Plaintiff paid $80 in ea^,but, by the termsof the sale, T. was to cutand shodc
a part of the com, and to gather the remainder, and the com was then to be
measured and paid for by the busheL Subsequently, the said com vnw levied
on by virtue of an execution against T. In a proceeding to try the ri^t of
property, there was evidence tending to show that it was the Intention of the
parities that the sale should be complete and abselvte at the time it was made.
Held, that an instruction to the Jnry that, if the vendee was to cut and measure
the com, and it was then to be paid for by the bushel, no title passed to the
vendee, and the property was liable to the executor, was error. Whether title
passed or not was a question of intention, wad was for the jury. 1871. Oraf
y. mteh (58 m. 878), XI, 85, and note, 90.

4. When title passes without separation. The plaintiffs purchased of
defendants a quantity of com, parcel of a specified cargo, then stored in a
warehouse, paid the price therefor, and received a reeeipted bill of sale. The
defendants thereupon drew an order upon the superintendent of the warehouse,
for delivery to plaintlfb of the quantity of com from specified cargo, and the
superintendent on receipt of the order gave defendants his orders for the
delivery of said com to plaintlfifo, which order was delivered to plaintiffs. A
few hours after, and before the presentation of said order, the warehouse was
destroyed by fire, and with it the grain. Held, in an action to recover back
the price paid, that the sale and delivery were consummated, and the loss,
therefore, on the plaintiffs. 1870. EuueU v. CarringUm (42 N. Y. 118), 1, 498.

6. Upon a sale of a specified quantity of grain, its separation from

a mass, undlstinguishable in quality or value in which it is included, is
not necessary to pass the title, when the intention to do so is otherwise
clearly manifested. i&.

IL Dbliyert Ain> ▲ochftanob.

6. What amomits to. The plaintiff purchased, in good faith, bales of wool
stored in the seller's factory, and the seller agreed to keep the wool for a time
where it was on storage for the plaintiff, who had no place to store it. The
seller, by the plaintiff's direction, opened some of the bales, took out of them
samples, and delivered them to the plaintiff together with a bill of parcels
wherein was acknowledged the receipt of the contract price. Plaintiff desired
the parcels to resell the wool by. Held, that there was evidbnce to go to the

Digitized by


SALE. - 31J

jnry of a delivery Buffldent as to creditors. 1871. Ingatts v. E&rrick (106
Maaa. 351).XI,860.

7. Aooeptanoe — p rea um ption from retantion — avldanca. In an action to
recoyer the valae of goods sold by a verbal contract, void bj statute of frauds,
the vendor proved delivery to the vendee, whereupon the vendee offered the
contents of a telegram which he liad attempted to send to the vendor, to show
that he declined to accept the goods. The offer was rejected, on the ground
that the vendor had not been shown to have received the telegram. Held, on
appeal, that the acts of the vendee at the time of the receipt of the goods, and
his Inma fide attempts to communicate his rejection of them to the vendor,
were material and competent to rebut any presumption of acceptance arising
from their retention. 1872. Caulkins v. Bellman (47 N. Y. 449), VII, 461.

8. DeUTcry to common otbrxier, M. & B., of Annapolis, directed A. G. &
Co., of Boston, to send a cargo of one hundred and fifty tons of ice, and author-
ised them to get the freight as low as possible. The invoice was completed,
shipment was made in the usual mode, and advices thereof were sent by letter.
The cargo having been badly damaged in the passage, in an action by the ven-
dors to recover the value of the ice, /leld^ that the delivery to the conmion car-
rier transferred the title to the vendees, and that the vendors could recover the
contract price. 1870. Moffruder v. Qage (88 Md. 844), III. 177.

9. If the contract of purchase be silent as to the person or mode by

which the goods are to be sent, a delivery by the vendor, to a common carrier
in the usual and ordinary course of business, transfers the property to the
vendee. lb. See Btatutb of Frauds.

10. N. & T. ordered goods from plaintiff, to be sent to them "via

canal." Plaintiff sent to them the goods " via canal," as ordered, and mailed
to them a bill of sale. Held, that upon delivery to the carriers, the title to
the goods passed absolutely to N. & T., subject only to the right of stop-
page in transUUy and that plaintiff could not sue for a loss of the goods en
route. 1871. Krudler v. BUison (47 N. T. 86), VII, 402.

11. If a Tendee allow a vendor to remain in possession, or after a formal
delivery, immediately restore the possession to him, and he afterward sell
and deliver the g^oods to a bona fide purchaser for value, without notice of the
prior sale, such purchaser is entitled to the goods against the first vendee and
all claiming under him. 1869. Davte v. Bigler (62 Penn. St. 242), I, 898.

12. This rule depends upon neither the statute 13 Eliz. ch. v, nor stat-
ute 27 Elia. ch. iv, but upon the circumstance that the vendee, by suffering
the vendor to remain in possession, enabled him to commit a fraud upon inno-
cent third persons. lb,

13. The rule of law, that the retention of possession of personal prop-
erty is conclusive evidence of a colorable sale, is a rule of policy required for
the prevention of fraud, and is to be inflexibly maintained. lb,

14. ▲ hnsband, for a good omialdermtloB, oonTsyad oattle to bis wl£s
by an absolute bill of sale, which he delivered to her. The cattle were at the
time upon the husband's farm where both he and the wife resided. No other

Digitized by


312 SALK

deliyery of the cattle was made, and thej remained and were uaed upon the
farm as before. The cattle having afterward been attached on a writ against
the husband, held, in replevin hj the wife, that there waa no sufficient delivery
of the cattle from the huaband to the wife. 1872. McKee v. Qareelon (60 Me.
165). XI, 200.

16. Destruotion of pr^Mrty before daliTery. Where a contract ia made
for the sale and delivery of specified articles of personal property, under dr-
cumstances where the title does not vest in the vendee, and the property is
destroyed by an accident before delivery without the fault of the vendor, the
latter is not liable upon the contract for damages sustained by the vendee.
1871. i>«rttfrv. jyort(?»(47N. T.62),VII,415.

UL FRAUDULEirr balb.

10. ThraadalMil — qnastiona for Jmy — daliTery. Two sons, hotel ke^iers,
disposed of their interest in the hotel furniture and fixtures to their father.
The father had been living in the hotel previous to the transfer. After the
transfer, the sons remained, and one of them acted as superintendent. The
dissolution of the partnership of the sons, and the transfer to the father, were
publinhed in two leading newspapers. Subsequently the furniture was levied
on under a judgment obtained against the sons. HM^ that not only the ques-
tion of good faith in making the transfer, but also the question whether there
waa Mich delivery, actual or constructive, as to be notice to all third persons,
and whether the possession taken by the vendee was exdnsive, or concurrent
with the vendors, was to be submitted to the jury. 1870. McKtbfnn v. MdrUn
(64 Penn. St. 852), UI, 688.

17. Fraud — mplmwti by Tendor. Where goods are purchased by means
of sucU fraud on the part of the vendee as renders the sale void, and are trans-
ferred by a general assignment, the vendor may replevy the goods of the
asAignee. 1872. Farley y, Lincoln (HI N.R. 677), Xll, 182.

ly. Conditional balb.

18. What is. H. sold and delivered a house car to P., under a bill of sale
providing that " said H. reserves the right from said car until fully paid, but
said P. shall have the use of said car from date ; should said P. fail to comply
with this agreement, said H. shall have the right to take said car from said P.
as his property." Held, that it was a conditional sale, and that the car might
be taken under execution by P.'s judgment creditor. 1870. Rook v. Under-
man (64 Penn. St. 499), III, 612.

19. Estoppel of Tender — porofaaser from Tondee. Plaintiff^ sold a chattel
to G. on condition that it should remain plaintiff's until paid for, and gave him
a receipted bill of sale therefor, omitting, at G.'s request, any statement of the
condition. Defendant bought the chattel of G. without notice of the condition,
after having been informed by plaintiff that he had sold it tc G . and after
having seen the bill of sale, but before G. had paid plaintiff for it. Held, that
in the absence of fraud, the plaintiff was not estopped to clidm the chattel from
tiie defendant. 1871. Zuchtmann v. Boberti (109 Mass. 58), XII, 668.

Digitized by


SALE. 313

do. AoooMdon — r«pain to proparty. B. sold a wagon to H. on condition
that it should remain the property of B. till paid for. Plaintiff repaired it for
H. by pntting in new wheels and axles. H. took it from plaintiff's poBsession
withoQt his knowledge or consent, and afterward agreed with plaintiff that the
** running part " of said wagon should remain the property of plaintiff until
paid for. H. never paid either B. or plaintiff, and neither had notice of the
other's claim. B. took the wagon back from H. &nd sold it to defendant, who
did not know of plaintiff's claim. Held, that defendant was liable in trover
for the wheels and axles. 1872. Clark y. WelU (45 Vt. 4), XII, 187.

V. Wabraktt.

21. As to quality. The plalntiffii contracted to manufacture and deliver to
the defendant " all the horn chains they manufacture." The chains manufac-
tured and delivered were composed of round and oval links, the round links
being hoof and the oval links being horn ; and in an action to recover the con-
tract price, held, (1) that the words " all the horn chains they manufacture "
did not imply a warranty that the chains should be made wholly of horn, but
that they should be the article known in the market as ** horn chains ;" (2)
that the contract called for articles of a fair merchantable quality and of good
workmanship, but not for articles of the first quality. 1869. Sweat v. Shum-
%Day (102 Mass. 86S), III, 471.

22. The agent of daCsndanti ozhlbfttad samples of tea to plaintiff and nego-
tiated a verbal sale in value exceeding $50. Subsequently a bill of sale and
the tea were forwarded. There was no warranty in the bill of sale, but the
tea was found to be unsound. Held, that the transaction was an executed sale
with warranty, and that the plaintiff was entitled to recover without any ofler
to return the tea for breach of warranty. 1870. Foci v. BemUey (44 N. Y. 166),
IV, 652. '

23. At an anotion saloi tha anotionaar stated that the article ofiiBred was
** blue vitriol, sound and in good order." It had the appearance of that article,
and by no examination practicable at the time, could it be discovered that it
was not It was, in fact, what was known as mixed or '* saltsburger vitriol/'
composed of a smaU proportion of '* blue vitriol," the residue being green
vitriol, an article of much smaller value. The defendants having bid off the
property, refused to take and pay for it, on ascertaining its true character, and
it was sold again on their account. In an action to recover the amount of the
loss : held, that upon these facts, the Jury might have properly inferred that
there was upon the sale a warranty that the artide sold was blue vitriol; that
it was, at least, the duty of the court to submit lie question of warranty to the
jury, instead of directing a verdict for the plaintiff. Held, also, that there was
a breach of the warranty; the article sold having only a small per cent of blue
vitriol in it, and being not an inferior article of blue vitriol, but a different sub-
stance with a small admixture of blue vitrioL 1872. Ha^Hne v. Pemberton
(51 N. Y. li)ex X, 595.

24. Breach of — ▼•ndaa not bomMl to ratom. Upon an executory contract
of sale, with a warranty as to the quality of the article contracted for, the


Digitized by


314 SALK

purchaser is not boand to retam, or offer to retnro, the article on diacoyering
that it is of an inferior qaalitj, but he may retain and use the property,
and have his remedy upon the warranty. But the purchaser in an executory
sale cannot rely upon a warranty as to open, plainly apparent defects, any more
than he could upon a sale of goods in presenti. 1878. Dcip y. Pool (52 N. Y.
416). XI. 719.

26. Warrantj after sale. ' A warranty of goods after the sale has been com-
pleted is yoid. unless supported by a new consideration. 1871. Summers y.
Vaughan (85 Ind. 898), IX, 741.


26. Where made — sale by sample. Defendant ordered, by sample, liquors
of plaintiff's agent. The order was sent to plaintiff, and the goods were by
him shipped to defendant. The defendant liyed and the order was given in a
State where the sale of liquors was unlawf uL Plaintiff lived in and the goods
were shipped from a State where such sale was lawful Held, that the sale
was made in the latter State, and that plaintiff could recover the price in an
action in the courts of the former State. 1871. BooMy y. PlaisUd (51 N. EL
486). XII, 140; ffiU v. Spear (50 N. H. 258), IX, 206; Tegeler v. SHpman (83
Iowa, 194). XI, 118.

27. After-acqnired property — burden of proo£ Action of trover against
executors for goods claimed by plaintiffs under a verbal contract whereby the
testatrix, for a valuable consideration, agreed to sell and convey to them all
the personal property she then had and all that she might thereafter acquire
and die possessed of. Held, (1) that the contract was inoperative to pass title
to the subsequently-acquired property, and that plaintiffs could recover for the
conversion of such foods only as testatrix had when the contract was made ;
(2) that the burden of proof was on the plaintiffs to show whicli these were.
1872. WUeon v. WUson (87 Md. 1), XI, 518.

28. A sale at auction of distinct parcels of goods to the same purchaser, on
separate bids, is an entire contract. 1871. Jenne— v. WendeU (51 N. H. 63),


29. Plaintifl^ a phyaiciaii, sold hla good will to defendant, another physi-
cian, and agreed to use his influence to induce his patients to employ the
defendant. HM, not to be against public policy. 1872. Hoyt v. HoUy (89
Ck>nn. 826), XII, 890.

30. A sale of fish hereafter to be can^t passes no title to the fish when
caught. 1871. Low v. Pew (108 Mass. 847), XI, 857.

31. A sale of stooki oarxlee with it dividends already declared but to be
subsequently paid. 1872. Burroughs v. North CaroUna Railroad Co, (67
N. C. 876), Xn, 611.

32. Of poisonous urtioleb V.. the owner of a quantity of hay. knowing that
white-lead paint had been spilt upon it. endeavored carefully to separate the
damaged part from the rest, and supposed he had succeeded, and afterward
sold the supposed undamaged part, without disclosing its condition, to F., whose
cow ate thereof and died. Held, that V. was liable, and that the measure of

Digitized by



damagefl was the yalae of the i»w, if F. used all reasonable means to restore
her. 1869. French v. Fining (lOd Mass. 182), III. 440.

33. Right of Tendae to taka goods — trespass. In an action for trespass,
h appeared that plaintiff gave a chattel mortgage and afterward a bill of sale
to defendant, of honsehold f umitnre, that the f nmitnre remained in possession
of plaintiff, who subsequently remoyed to T., taking it with him, and, some
time after that, went awaj from T., leaving his house locked and containing
the furniture, and that defendant unlocked the house and took away the furni-
ture. HM, that in the absence of other proof of some license or permission,

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 40 of 51)