CHARLES MERRIAM, Appt.,

V.

GEORGE HAAS ET UX.

(See S. C., 3 Wall., 687-688.)

Moneys drawn for by banker, who failed, belong to the one for whom he drew, and the loss must be his.

Where a banker at the mortgagor's request drew on the mortgagee for the money for which the mortgage was given and received, and credited it to mortgagor's account, and the latter drew checks for part of it, and the banker failed; held, that such moneys were the moneys of the mortgagor at the time of such failure, and the loss must be his. [No. 77.]

Argued Dec. 23, 1864. Decided Jan. 23, 1865.

plaintiff, residing in Boston, for that sum, and the draft was duly honored.

On the 9th day of August, Caldwell & Co. failed without having paid over the money to defendant; and the sole question in the case is. for which of the parties of this suit did they hold the money at the time of their failure.

It is a mere question of the weight of testimony, and we are not able to see that any principle can be settled or illustrated by its discussion. It is, perhaps, sufficient to say that the testimony satisfies us that the money was held by the bankers as a deposit to the credit of the defendant, and that he knew and so understood it before their failure.

which induced this belief. Caldwell, one of the We will mention only a few of the reasons

ed States for the District of Minnesota. This was an action brought in the court below by the appellant, for the foreclosure of a mortgage given to secure a note for $6,000 with interest.

The court below rendered a decree for the plaintiff for $4,000 only and interest, and he appealed to this court.

The case is stated by the court. Messrs. Lorenzo Allis, W. D. Davidge, N. Wilson and Peckham, for appellant. Messrs. C. D. Gilfillan and J. M. Carlisle, for appellees.

Mr. Justice Miller delivered the opinion of the court:

This is a suit to foreclose a mortgage for $6,000, given to secure a loan of money. It is conceded that at the time the mortgage was executed and delivered, only $4,000 of the loan was received by defendant; it being stipulated that the remaining $2,000 was to be advanced when defendant should finish a building on the lot conveyed by the mortgage, and cause it to be insured for the benefit of plaintiff.

The loan was negotiated in some part through the banking house of Caldwell & Co., of St. Paul, where the defendant resided.

On the 30th day of July, the defendant brought to Caldwell & Co. the policy of insurance, and satisfied them that the condition on which he was to receive the last $2,000 had been complied with, and Caldwell & Co. drew on

struction, and at the request of defendant that he drew on plaintiff for the money; that in doing so he acted solely for defendent, and on the day of the date of the draft, he permitted the defendant to check against this money on his bank for the sum of $250, and that in all, defendant checked on him against that fund for over $800.

The clerk and bookkeeper of Caldwell & Co. testifies, that on the day the draft was drawn, defendant was credited on their books for $2,000 on account of said draft, and that he continued to draw it out by checks, until they amounted to over $800 at the day of their fail. ure.

The pass-book of plaintiff with Caldwell & Co. is produced by himself, and shows a credit of $2,000 dated August 30th; but as this was sometime after their failure and after they had had this pass-book in their hands, it is evidently a mistake as to date. The clerk above men tioned, says it was intended for August 1st, as the arrangement was made on Saturday, July 30, after banking hours, and it was his custom to carry such transactions on the books of the next business day. This explanation seems reasonable, and as he swears that it conforms to the memorandum on his blotter, we see no reason to doubt it. The checks are shown which defendant drew between July 30, and August 9, and it is not denied that unless drawn against this money, the defendant was overdrawing his account. No proof is offered of any agree

notice. Horbach, and not Brown, was in the actual occupancy of the lands at the time, and well as at the time and before Brown purchased of Seely.

7. Possession, in order to affect a purchaser with notice, must be actual, unequivocal and notorious occupancy of the land.

Same Lead. Cas., 118; Brown v. Anderson, 1 Mon., 201; Grimstone v. Carter, 3 Paige, 436; Buck v. Holloway, 2 J. J. Marsh., 180; Landes v. Brant, 10 How., 348; 32 N. H., 382; 2 Foster 500; 8 N. H., 264.

Mr. James M. Woolworth, for appellees:

The appellant Wiggins is not a bona fide purchaser without notice of Mrs. Porter's equities.

I. In his answer and in his deposition as well, he denies notice at the time of his purchase, but not down to the time of the payment of the purchase price. And he has himself shown in his deposition, that the payment of three fourths of the price was deferred to a period long after the time of the purchase. Boone v. Chiles, 10 Pet., 177.

ual knowledge of the rights of plaintiff when he purchased from Horbach and received the legal title, a case of constructive notice of those rights is well made out.

The plaintiffs in both cases were in possession of the land, having it inclosed by fence, and in actual cultivation at the time Wiggins bought of Horbach. This was sufficient to put him upon inquiry, and if had inquired he would have received full information of the superior equtable claims of complainants.

The plaintiffs, in accordance with these views, had decrees for conveyance of the legal title, in the district court in which the cases were first tried, and these decrees were affirmed on appeal by the Supreme Court of the Territory of Nebraska. On a simple matter of conflict of testimony like this, in which we are able to concur fully with the judgment of two courts which have already passed upon the same record, we do not deem it necessary to give any minute criticism upon the testimony on which these decrees are founded.

They are, therefore, affirmed with costs.

MARINUS W. GARDNER, Treasurer of the City of PROVIDENCE, Plff. in Er.,

3. Mrs. Porter's possession was also notice of all her rights. During the spring in which she purchased, she had the lot fenced and broken up, and she has cultivated it ever since.

The rule is well settled that an actual, visible, and 'notorious possession, is notice to a purchaser that the possessor has some interest in the land.

Krider v. Lafferty, 1 Whart., 303; Johnson v. Irwin, 3 Serg., & R., 291; Rupert v. Mark, 15 Ill., 540; Morrison v. Kelly, 22 Ill., 610; Jackson v. Oltz, 8 Wend., 440; Machin v. Geortner, 14 Wend., 239; Ellicott v. Pearl, 10 Pet., 412; Ewing v. Burnet, 11 Pet., 41.

Mr. Justice Miller delivered the opinion of

the court:

In these two cases the facts are the same, and the questions suggested by the records are exclusively questions of fact.

It is charged in the bill that Horbach, one of the defendants, having sold the land which is the subject of the controversy and received the consideration for it, afterwards caused the equitable title under which he then claimed to be set aside by the Secretary of the Interior, and procured a patent to himself for the land thus sold; and that he then conveyed the land to Wiggins, his co-defendant in these suits.

The plaintiffs are purchasers from Horbach's first vendee, and charge that Wiggins purchased with notice of their rights.

We are of opinion that the evidence sustains the allegations of the bill, although the answer of Wiggins denies them.

It is made pretty clear, by the testimony, that the charges against Horbach are true. And although it is not shown that Wiggins had any participation in this fraud, or that he had act

v.

SIMEON R. BABCOCK.

(See S. C.,3 Wall., 240-244.)

Bill of exceptions-presumption in regard to ver

dict where all the evidence is not in bill-instructions to jury.

contain all the evidence on the trial, nor even the Where the bill of exceptions does not purport to substance of it, the correctness of the finding of the jury is not involved, and every presumption is in favor of the verdict, and that it was supported by the evidence on the trial.

The court cannot tell the jury that any legal results follow from evidence which only tends to prove the issue to be tried.

the jury the right to determine matters of fact, An instruction which sought to withdraw from was correctly refused.

[No. 69.]

Argued Dec. 6, 1865. Decided Dec. 18, 1865.

IN ERROR to the Circuit Court of the United

States for the District of Rhode Island. This action is founded upon a statute of Rhode Island, requiring cities and towns to keep their highways safe and convenient for travelers.

Rev. Stat. R. I. of 1857, ch. 44, sec. 1, p. 122. The passageway, where the injury to the defendant in error occurred, was situated between a brick store and the market house, in the Town of Providence. It had been used as a private way before it had been laid out and accepted as a highway by the town. The defect com plained of, and by reason of which the injury occurred, was the entrance to the cellar of the brick building, adjoining the passageway extending into the sidewalk from the side of the building fifteen and a half inches and about four feet long, which was covered with a substantial plank covering, and when that was raised, left an opening to the cellar twelve inches in width in a sidewalk six feet wide.

This cellar entrance had been constructed and used by the occupants of the store for more than forty years, for the purpose of taking in and putting out merchandise in the course of their business, being open for that purpose as required during the periods of actual use. The cellarway had thus been used for the purposes of business prior to the time when the highway was laid out over the land adjoining the building and including this sidewalk. No complaint of this mode of use had been made to the occupants of the store, or to the town or city authorities, although this street was one of the great avenues for pedestrians in the City of Providence. On the occasion of the accident, the door covering the opening had been raised for use by the occupants of the store but six or eight minutes.

Mr. Jenckes, for plaintiff in error: The propositions contained in the request for instructions, which were refused, were the folowing:

First. That the owners of the land adjoining the highway and upon which the brick store was erected, had a right to use the land under what was originally the sidewalk of a private way, and subsequently of a public highway, for the purposes of a cellar, provided they covered such cellar or cellar entrance with substantial coverings so as not to render the sidewalk unsafe for pedestrians; and that they also had the right to raise the coverings of the cellarway in such sidewalk for the purpose of actual business, and to keep them open while so engaged in such use.

To this effect have been the decisions of the Supreme Court of Massachusetts, under a statute containing the same requirements as that of Rhode Island.

See O'Linda v. Lothrop, 21 Pick, 292; Un derwood v. Carney, 1 Cush., 285.

Second. That it was not negligence on the part of the City to allow such an opening, so protected and used, to be continued."

This proposition is not shaken by the decision of the Supreme Court of Massachusetts in Bacon v. Boston, 3 Cush., 174.

In that case the aperture was permanently uncovered and used for the purpose of admitting light into the adjoining cellar.

The instruction of the court was applicable only to cases of aperture kept continually open, or to such as might have insufficient and unsafe coverings.

Third. That the jury should have been instructed that, upon the evidence, the City had no notice that the highway was unsafe or inconvenient by the opening of the cellar door and keeping it open for use during six or eight

minutes.

When the cellar way was covered, no defect in the highway existed. This was its condition during all the night and for the greater portion of the day. When open for use and in actual use, both the public and the land owners enjoyed their rights without conflict, and the aperture would not become a defect in the highway. If opened wrongfully by a stranger, or if left open by the proprietor, after the actual and proper use had ceased, then it would be a question of fact for the jury whether the City had notice of the stranger's trespass or the proprietor's negligence, to make its inhabitants

liable for their negligence on the special occasion.

It is submitted that towns and cities are not liable for negligence in the repair of their highways in consequence of the use, in proper manner by the proprietors of adjoining lands of their rights in the soil.

Mr. William H. Potter. for defendant in error:

I. It is the province of the jury to determine upon the evidence, whether the highway or sidewalk in question is safe and convenient or not.

Fitz v. Boston, 4 Cush., 365; Clark v. Fry, 8 Ohio St., 358, see 375; Hall v. Manchester, 40 N. H., 410; Bacon v. Boston, 3 Cush., 174.

In The City of Providence v. Clapp, 17 How., 161 (58 U. S., XV., 72), the court below charged, that "It was for the jury to find, as matter of fact, whether the sidewalk at the time in question was in a reasonably safe and con venient state, having reference to its uses," and this court affirmed that charge.

Weightman v. Corporation of Washington, 1 Black, 39 (66 U. S., XVII., 52) is decisive on this point.

II. There was no error in the charge of the court, as given, nor in the refusal to charge as requested by the counsel for the defendant.

The propositions in the charge given, are so definite and so well settled by repeated decis ions, that discussion of them would be super fluous.

The refusal to charge as requested by the de fendant, we will consider.

1. The request of the defendant to charge, and which was refused, states that the defendant offered evidence tending to prove divers matters of fact as to the size of the opening; how covered; how long it had existed; its use, etc., and then proceeds to ask the court to charge the jury unqualifiedly and peremptorily as to these matters, as though they were agreed or admitted facts. He assumes to have matters of fact disposed of by the court under the form of a charge as to matters of law.

Where there is any conflicting evidence as to matters of fact, the court cannot withdraw these from the jury. And in such cases where the rights of parties turn upon the finding of the jury upon such evidence, the farthest the court can go, is to charge that if the jury find certain facts, then the rule of law is thus and so. To go further is error.

Mr. Justice Davis delivered the opinion of the court:

This suit was brought by the defendant in error, to recover damages for an injury which she received by falling into an opening in the sidewalk of the streets of Providence; which opening adjoined a brick store and was used for a cellar entrance. The action was founded on the Statute of Rhode Island, requiring the cities and towns to keep their roads and streets safe and convenient for travelers.

It was argued by the plaintiff in error that the defect in the street was so recent that the City could not be deemed to have constructive notice; and, as no actual notice was proved, no liability could attach. But, as this question is not presented by the record, we are not called upon to discuss it, and to declare under

what circumstances the City could be exonerated from liability for damages by reason of defective sidewalks. The bill of exceptions does not purport to contain all the evidence on the trial, nor even the substance of it, for it says, after reciting certain proofs, that "Much other testimony was also introduced on the one side and the other which is not reported.”

Such being the case, the correctness of the finding of the jury is not involved, and every presumption is in favor of the verdict, and that it was supported by the evidence on the trial. There was evidence which tended to establish the liability of the City, and the court properly charged the jury that the plaintiff, to maintain her action, must prove that the City had notice of the defect in the street. If the evidence were not enough, the corrective was in the hands of the court, on a motion for a new trial. It was conceded, in the argument, that the court ruled properly in the instructions which were given to the jury; but it was insisted that there was error in refusing to instruct, as requested by the defendant. The court was asked, substantially, to charge the jury, that the City was not responsible, because there was evidence which tended to prove the existence of certain facts. This the court had no right to do. The court could not tell the jury that any legal results followed from evidence which only tended to prove the issue to be tried. This controversy necessarily turned on the finding of the jury upon the evidence, and an instruction, which sought to withdraw from the jury the right to determine matters of fact, was correctly refused.

There is no error in the record, and the judgment of the court below is affirmed.

THE COUNTY BOARD OF SUPERVISORS OF SHEBOYGAN COUNTY, Pliffs. in Er.,

gan and the Several Towns in Said County, to Aid in the Construction of a Railroad, proved March 9, 1854.

ap

The bonds were issued in pursuance of the provisions of the Act, and the plaintiff below, the defendant in error, is a bona fide holder. The Act itself provides that the bonds "Shall be in the hands of any bona fide holders of the same, full and complete evidence both in law and equity, to establish the indebtedness of said County of Sheboygan, according to the tenor and effect of said bonds.'

Previous to 1854, a corporation had been created to build and operate a railroad from the City of Sheboygan in said County, westward, and the County was empowered by the Act in question, to aid in the construction of the road by becoming a stockholder in the Company, and issuing its bonds in payment to the amount of $100,000.

In this instance the Act named certain persons who were to become the agents of the county, to subscribe on its behalf for stock and issue its bonds in payment; provided the people of the County should so determine at an election to be held as therein provided. The election was held; a majority of the votes were in favor of issuing the bonds under the Act, and the bonds were thereupon issued and delivered by the County to the Company, in payment for stock subscribed according to the Act; the road was built and put in operation, and the bonds had passed into the hands of bona fide holders.

Subsequent to the issuance of the bonds, the Legislature passed an Act authorizing the County Board of Supervisors of Sheboygan County to appoint a director of the Railroad Company to represent the stock which the County had purchased with these bonds according to the first Act.

v.

WARD M. PARKER.

(See S. C., 3 Wall., 93-96.)

-evidence.

Statute of Wisconsin, that bonds issued in pursuance of it are "full and complete evidence, both in law and equity, to establish the indebtedness of the county according to their tenor and effect," is constitutional.

When special authority is given to the people of a county to bind themselves by the issue of bonds, the Legislature may properly direct the mode in which it shall be effected. [No. 201.] Submitted Dec. 11, 1865. Decided Jan. 2, 1866.

IN ERROR to the Circuit Court of the United

States for the District of Wisconsin. This suit was commenced by the defendant in error, in the court below, to recover the amount of certain interest coupons attached to bonds issued by the defendant in aid of a certain railroad, according to the provisions of an Act of the Legislature of Wisconsin, entitled "An Act to Authorize the County of Sheboy.

NOTE-Recitals in negotiable bonds or securities evidence of the facts recited. Estoppel by recitals in. See note to Mercer Co. v. Hacket, 68 U. S. (XVII.),

548.

to act for the county, while, it is alleged, the Constitution requires all county officers to be elected by the people or appointed by the Board of Supervisors.

Messrs. James S. Brown, Buttrick and Hill, for plaintiff in error:

1. The commissioners appointed by the Legislature by the 1st section, derive no power whatever by such appointment to bind the county without its consent, if they are not county

officers.

They were not agents.

People v. Draper, 15 N. Y., 532.

If they are county officers, their appointment is unconstitutional and all their acts are void.

They are a Corporation, created for the purpose of aiding in the construction of a railroad. Then it must certainly be admitted, that it is not in the power of the Legislature to authorize one corporation to create a debt for another without the consent, express or implied, of the party to be charged.

St. Louis v. Russell, 9 Mo., 503; Hampshire v. Franklin, 16 Mass., 76; Town of Milwaukee 3 33