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while the officer is parleying with Tillotson. They both tell him Tillotson has sold the goods to McDonald ; but all the surrounding circumstances contradict the naked assertion of the parties. Tillotson's sign is still on the outside of the shop; the boxes and packages are marked with his name either in full or by his initials; McDonald's name appears nowhere. The attorney of the plaintiff in execution insists that the alleged sale is a mere pretense, and that the officer should proceed. The plaintiff not exhibiting his bill of sale, nor his books, and proffering nothing but his naked assertion, the officer seizes the goods and takes them away, and then this action is brought. The plaintiff's title is produced for the first time at the trial of the cause, and then the sheriff brings the goods into court, and says he is ready to deliver them immediately if the Court should so direct.
It seems to me, if we hold the sheriff liable in this case as a trespasser, when he was willing to restore the goods, it would be a great hardship upon the public officer, and would be, in reality, enabling a party to take advantage of his own wrong. The plaintiff
, even if he was a real purchaser, acted in such a way as to deceive the public, and this deliberately, and for his own supposed interest. When Tillotson's clerk was obout leaving the shop, shortly after the sale, he asked McDonald whether he was to erase Tillotson's name from over the door. McDonald replied “ that he would let it remain—that it would be of some ad. vantage to him.” It seems to me such a course of conduct should be discouraged. It holds out the vendor in a false light to the public, and gives him a false credit. In the case before us, it led the public officer into an error, the consequences of which the plaintiff now seeks to impose upon him.
I think the plaintiff was bound in good conscience to give the officer something more than his naked assertion, thus violently opposed by all the surrounding appearances. Why was not the bill of sale shown, and the plaintiff's books, upon which he now relies?
The position of a sheriff is one of great responsibility. If he refuses to make a levy, and the plaintiff in the suit can show that the goods found in the possession of the defendant in execution, were in truth his property, he is entitled to recover his debt pro tanto from the sheriff. And it seems that in an action against the sheriff for a false return of “ nullabona," it is sufficient to put the sheriff on his defence, for the plaintiff to show that the defendant in execution was in possession of property sufficient to satisfy the execution. Magne vs. Lyman, 5 Wendell, 311. I do not find any textual provision in our laws authorizing a sheriff to demand a bond of indemnity, and I have doubts whether he has a legal right to do so. If, on the other hand, he is to be held liable as a wrong doer, for taking property which the owner has been surrounded by deceitful appearences which entrap the sheriff, his double responsibility becomes grievous to a degree that appears to me unreasonable. I think very great weight is to be given to what was said in argument by counsel, respecting what is properly characterized by the chief justice as a defect in our jurisprudence. At common law, when the sheriff is met by the assertion of an adverse title, he may impanel a jury to inquire in whom the property is vested, and their return will excuse him in an action of trespass. Bacon's Abridg. verbo. sheriff. Bailey vs. Bates, 8 Johnson, 143. With us a sheriff has no such power, and ought not to be held with the same severity, to a party whose conduct was imprudent, and well calculated to deceive the officer.
If this case were tested by the rules and principles of the common law, which has been invoked in argument by the plaintiff's counsel, I incline to the opinion that the sheriff would be permitted to return the goods upon payment of costs and mere nominal damages. I question if the action of trespass would lie in such a case; for, to sustain that action, seems the taking must unjustifiable. Hence it is declared, by respectable authority, that if a sheriff take the goods of A. under a writ of fi. fa., after he has committed an act of bankruptcy, and afterwards the goods are assigned under a commission of bankruptcy, an action of trespass does not lie against the officer, although the goods do by relation be come the property of the assignees, from the time of committing the act; for, as
the officer might not know that A. had committed an act of bankruptcy, or that an assignment of the goods would be made, and as it was his duty to execute the writ, it would be unreasonable to punish him as a wrong doer. Bacon's Abridg. verbo Trespass. So if A. mix his corn or money with the corn or money of B., so that they cannot be distinguished, and B. takes the whole, trespass does not lie, as there was fault on the part of A.-Ib. And so I should think a party would not be entitled to bring an action of trespass against the sheriff who had left his goods in the possession of the defendant, in execution, in such manner as to give him all the appearances of ownership.
Then, if the taking was not unjustifiable, the plaintiff would be driven to an action of trover; and I find it asserted by the same author, that in some cases in that action, it is allowed to bring the thing into court. But herein,” he remarks, “ this distinction is to be observed; if trover is brought for a specific chattel of an unascertained quantity and quality, and unattended with any circumstances that may enhance the damages beyond the real value, but that its real and ascertained value must be the sole measure of damages, then the specific thing demanded may be brought into court. But where there is an uncertainty, either as to the quality or quantity of the thing demanded, or there is any tort accompanying it, that may enhance the damage above the real value of the thing, and there is no rule whereby to estimate the
additional value, there it shall not be brought into court.” So in Browne on Actions, it is said, " If the defendant return the goods, the plaintiff will only recover such damages as he has actually sustained; but he is, at all events, entitled to nominal damages, as the return of the goods does not cure the conversion, but merely goes in mitigation of damages; and if there be a dispute as to the quantity of the goods converted, and the plaintiff refuses to receive back the portion offered, the court will, upon application for that purpose, stay the proceedings on delivery of such portion of the goods, and payment of costs and damages; and if the plaintiff refuse to accept such terms, will permit the defendant to deliver up the goods, the plaintiff to pay the costs incurred subsequently to such delivery, in the event of his not recovering in respect of some other articles than those delivered up, or more than nominal damages in respect of those delivered up."-Browne on Actions ; Trover, p. 425.
The power of our courts cannot be less than that of those of common law to mould the remedy to the justice of the case.
To these remarks I may add, that I am not prepared to say that there was such a legal change of possession as would perfect the sale against creditors, even supposing the sale to be real and bona fide. See Hoffman vs. Clarke, 5 Wheaton, 549.
In that case, which was trespass against a constable, for taking a horse alleged to belong to the plaintiff, by virtue of an execution against X., the plaintiff's brother, it appeared in evidence that the horse had belonged to A., who testified that he had sold him to the plaintiff before the execution, for a full price.
Another witness, produced by the plaintiff, testified that the plaintiff and A. lived together, and that after the sale, the plaintiff kept the horse in the same stable in which A. had kept him. The court there said, the law, in order to make sales of personal property good against creditors, and to prevent them being deceived by appearances, requires that there shall be an actual transfer of the possession, so far as the nature and condition of the property will admit of it. The circumstance of the seller and buyer of the horse boarding together in the same house, furnishes no ground for dispensing with such actual change of the possession as will render it distinct and visible, so that it may become notorious. It was surely practicable for the plaintiff to have taken possession of the horse, by placing him in a different stable, and either feeding and taking care of him himself, or to have procured some third person to have done so. So here the plaintiff might have changed the sign, &c.
Rost, justice, and KING, justice, being also of opinion that the judgment should stand, it is therefore decreed that the judgment of the District Court be affirmed, and the costs of appeal be paid by the appellant. [The decree of the lower Court was, “ That the plaintiff, James P. McDonald, recover from the defendant, John
L. Lewis, sheriff, the goods described in the bill annexed to the plaintiff's petition, reserving to said plaintiff his right to sue the said Lewis for whatever damages (if any) the said goods may have sustained from a want of proper care and attention, whilst in the possession of said Lewis. It is further ordered that defendant pay the costs of suit.”] Elmore & King for plaintiff and appellant ; John R. Grymes for defendant and appellee.
COMMERCIAL CHRONICLE AND REVIEW.
THE EASY STATE OF THE MONEY MARKET-QUOTATIONS OF AMERICAN STOCKS IN LONDON-EXPORTS
or THE PORT OF NEW YORK IN 1848-9-INFLUENCE OF THE FIRE AT ST. LOUIS AND THE CREVASSE AT NEW ORLEANS ON THE MONEY MARKET-PAPER MONEY THE MEANS OF TAXATION FOR WAR EXPENSES -CAUSE OF HUNGARY SUPPORTED WITH PAPER MONEY-CONDITION OF THE BANKS OF NEW ORLEAXS -OPERATIONS OF EXCHANGE-CONDITION OF THE BANKS OF OHIO FROM 1835 to 1849-COMPARATIVE CIRCULATION OF OHIO AND NEW ORLEANS BANKS-OHIO STOCKS IN LONDON AT PAR, ETC., ETC.
Since the date of our last number, money has become very abundant; so much so, that it has found lenders “at call,” on good security, at 4 per cent per annum. The specie in the vaults of the Atlantic banks has increased to an important amount, while the receipts from California have, in some degree increased, reaching $310,000 at the mint. The exports of the country, both produce and stocks, have been large, and exchanges indicate a continued balance in favor of the city, both from interior and abroad. The state of Europe has been such, in its political aspect, as to impel capital towards those countries in which it is most secure, and the demand for United States stocks, as well as for those of the individual States, in those markets in which, a few years since, they were regarded with derision, is evidence at once of their improved character, and of shaken confidence in the debts of those governments then considered safe. In a former number, we compiled the quotation of stocks in the London market, according to the circulars of an eminent house. We have brought down those prices, in order to show the progressive advance :
QUOTATIONS OF AMERICAN STOCKS IN LONDON—BARING'S QUOTATIONS.
Massachusetts Louisiana 6's, 1868. 5's, 1860.
6's, 1860. 5's, sterling. 5's, 1850. February...
63 a 65 April 7... а
634 a 66 85 a 871 92 a 76 a 80 July 7.... 94 & 96 89 & 91 65 a 66 85 a 87 96 a 98
80 a August 25. 96 a 964 89 a 66
90 a September 22
90 a 91 66 a 67 87 a 96 & 98 November 10.. 97 & 971
65 a 66 88 a 89 94 a 951 17.... 95 a 97 88 a 89 66
89 a 90 931 a 944 December 1.... 96 a
90 a 91 94 a 96 85 a 86 14.... 96 a 974 91 a
91 a 96 a 97 1849, January 26. 104 a 105
711 a 721 93 a 98
a 99 87 a .. February 9.... 1054 a 1064 95 a .. 73 a 95 94 a 101 a 102 86 a 87 March
106 a 1064 95 a 96 76 a 77 96 a .. 103 a ... 87 a 88 April 5.... 1054 a 1064 .. a ..
.. a .. 102 a May 11.... 1064 a 107 94 a 95 78 a 79 97 a 99 1014 a
18.... 108 a 109 94 a 95 79 a 80 98 a 99 1014 a June 1.... 1101 a 111 95 a 96 79 a 80 99 a 100 101 a 102 88 a 90
This is an important rise in government stocks. The improvement, from the close of January to the close of May, was 54 a 6 per cent, with an accumulation
67 & .. 70 a..
86 a ..
92 a ..
78 & ..
of 4 months' interest, showing an actual rise of 41 a 4 per cent in the stocks, under an affected demand. In the other stocks, a material advance has also been apparent. A marked example is offered in Pennsylvania 5's, which have risen 17 per cent in the year, and 9 per cent in four months, ending with May, or 7 per cent in excess of the accumulated dividend. Pennsylvania was the best known of the individual State stocks abroad, and was selected to bear the odium, which, with more or less justice, attached to all those States which suspended their payments under the pressure of the general revulsion. While Europe has been verging to revolution, however, the United States, under the improved commercial and financial policy of the government, have been recovering; and it is a remarkable fact, that on the day on which French 5's sold on the Bourse at 80, Pennsylvania 5's sold at 80 in London. The former has fallen, and the latter advanced nearly the same figure within the year, to reach a common value in May, 1849. The State stock is, however, redeemable in twenty years, and the price therefore affords a bonus of near 1 per cent per annum, while the French rentes must depend altogether upon the chances of the market for realization. The restored state of American credit, as indicated in these figures, has induced considerable remittances in these stocks, and powerfully affected prices upon the New York stock exchange, as is seen in the following quotations :
PRICES OF STOCKS IN NEW YORK.
New York Ohio Kty 5's, 1853. G's, 1856. 6's, 1862. 6's, 1867. 6's, 1868. 6's.
6's. October 1848.... 931 8 934 103 a 103 103. a 103 1041 a 105 105 a 1054 105 a 1054 100 971 January 2.. 99 a 994 105 a 1051 107 a 107 109 a 109: 1094 a 109 108 a 109 103 101 February 19..... 98 a 98 105 a 1051 107 a 107 1104 a 1101 1111 a 111] 108 a 109 1034 1014
99% a 106 a 107 109 a 110 1114 a 112 1121 a 123 1081 a 1094 103 102 March
99 a 99$ 104 a 105 107 a 109 110 a 111 112 a 112, 108 a 109 1031 102 April
97 , 971 104 a 104 107 a 107 107} a 1071 110 a 1107 108 a ... 1031 102 May
99 100 106) a 1061 109 a 1091 112 a 112 1134 a 113] 105 a 106 106 1034 June 12...... 100 a 1004 107 a ... 110 a 110115 a 115, 116 a 116 111 a 111} 110 1071
The transfer books for United States stocks close on the 1st of June, consequently, the quotations in that month are ex-dividend, and Treasnry notes which are always sold without the interest, reached an equal price with the stocks in which they are fundable. The Pennsylvania interest for August, will, by the terms of the law of the last season, be paid in specie funds. The fact that these stocks are now selling in London at increasing values, may, as is usual in such cases, increase the disposition to invest in them, and, by so doing, continue to keep down exchanges for the operations of the fall trade. These already manifest a disposition to rise, notwithstanding that the exports, at least from the port of New York, continue considerable. The business of the port of New York, for the present year, thus far, has been as follows:
IMPORTS INTO TIK PORT OF NEW YORK.
1849. Specie. Free. Dutiable. Total. Specie, Free. Datiable. Total January... $48,032 $480,829 $9,104,104 $9,632,965 $57,700 $285,117 $7,8333,710 $8,416,947 February 49,502 141,539 9,566,859 9,757,900 21,323 590,849 8,257,786 8,564,226 March....
2,199,749 5,971,601 8,19.131 130,895 1,401,500 7,938,478 8,650,214 April.. 65,719 475,314 6,689,716 7,180,747 638,746 2,192,798 5,808,658 8,639,703 May...... 133,922 1,283,754 5,087,278. 6,504,42 1,137,932 887,180 5,778,628 7,804,740
Total... $321,956 $4,581,185 $36,369,559 $41,770,882 $1,986,596 $5,257,444 $35,607,750 $42075,825
EXPORTS OF THE PORT OF NEW YORK.
Specie. January... $1,183,517 February 433,746 March
452,507 April 1,180,422 May 2,249,253
Foreign. Free. Dutiable. Domestic. $29,923 $122,633 $2,109,903 42,554 308,824 2,190,649 63,303 269,287 2,687,806 45,713 77,383 3,737,018 63,499 488,492 3,946,768
Total ... $5,499,445 $177,422 $1,236,012 $10,735,931 $763,413 $244,992 $1,266,619 $14,672,145
This result gives a material increase in the export of domestic produce over the corresponding period of last year, and is mostly made up of the breadstuffs sent to Great Britain, although prices there are lower than they have averaged for some time. The ability of the United States to send forward supplies, is evinced in the continued exports thither, in face of a growing harvest of good promise, and an accumulation of grain on hand. The continuance of an abundance of money in England, with the low price of food, and fair expenditure of money upon railroads, are elements of a large consumption, not only of produce, but of cotton. The influence of a continued market abroad for considerable supplies of farm produce, is favorable to the collection of monies due the seaboard. That prompt sale is found for the considerable receipts of produce sustains the prices, and realizes important sums available in the discharge of debts, and these have been reasonably well collected, nothwithstanding the many calamities that have befallen various sections of the country—the fire at St. Louis, the crevasse at New Orleans, the steamboat disasters, and storms that have produced local distress, while the paralizing influence of all-pervading cholera, has aided in checking enterprise.
Under payments from the interior, receipts from California and importations from Europe, money has accumulated to a very considerable extent in the last four weeks in the Atlantic States, and without promoting much desire to speculate. The absence of that spirit of enterprise which always manifests itself in the United States when money is to be had, may be ascribed to the influence of the political state of Europe, as well as to the prevailing epidemic here. The prospect of an European war has strengthened with the growing power of the Hungarian people, manifesting itself in successes which have aroused the Russian government, and induced more than one German sovereign to rally upon the Muscovite columns, as the emancipated people of western Europe assemble behind the glorious standard of Hungarian independence. A long and desperate struggle, between popular government on one hand, and aristocratic pretensions on the other, has apparently become inevitable, and the consequences may be the rapid aggrandizement of the American Union. As the British armies in the Peninsula, in 1808–10, depended upon American ships for food, so may now convulsed Europe find in our merchant marine the only means of keeping up ocean intercourse. The lessons of the past are sufficient to command such respect for the American flag, as will preserve its neutrality undisturbed ; and while capital emigrates to our tranquil shores, the seas must be opened to a more extended commerce. If the disturbed industry of Europe produces less wealń to compete with American productions, the same causes may create a larger demand for the exports of the Union. If the people of Europe are compelled, in defence of their rights, to devastate as soldiers, the fields they were wont to cultivate as farmers, they must nevertheless be fed;