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become the owner of the goods. The defendant, by the acceptance of the cargoes under the documents, was estopped from treating bim as other than owner. It abandoned, so far as the plaintiff was concerned, its relation with Dunan and Radde, and its claim for damages, and cannot now alter the position of the plaintiff to his detriment. The “advances” spoken of in the instruction given were the same as the amount of the "invoices” there spoken of, made out in the name of the plaintiff. The amount of both was $15,450.42, and that was the amount of the recovery, being the sale price. There was no error in the form of the instruction, to the prejudice of the defendant. There having been a contract of sale, by mutua) assent, and the contract having been executed by the vendor, by the*delivery of the goods, the liability of the vendee to pay for them on delivery, in the absence of other terms, accrued, and the law raises implied contract to pay interest, from delivery, on the purchase money, which was liquidated by the terms of the invoices in the name of the plaintiff, received and retained by the defendant. Such is the rule of the general commercial law. Dodge v. Perkins, 9 Pick. 368, 388; Foote v. Blanchard, 6 Allen, 221; Van Rensselaer v. Jewett, 2 N. Y. 135; Esterly v. Cole, 3 N. Y. 502. The case is not one of an open running account, but is of the class where there is a stipulated term of credit, which has ex. pired.
We do not find anything in the decisions in South Carolina which would forbid the allowance of interest in the present case. In Rice v. Hancock, Harper, (S. C.) 393, in 1824, interest was disallowed on a book-account for goods, because, although there was a special agreement to pay for the goods in cotton in 60 days, and otherwise to pay interest after 60 days, there was no count on the agreement. A like decision was made in Schermerhorn v. Perman, 2 Bailey, 173, in 1831. In Lindsey v. Bland, 2 Speers, 30, in 1843, on a count for negroes sold, but no count for interest, interest was allowed after 12 months, because a 12-months note was to have been given. In Ancrum v. Slone, Id. 594, in 1844, the rule is stated that interest is allowable on a liability to pay money, if the sum is certain, from the time when, by construction of law, the payment is demandable. In Kennedy v. Barnwell, 7 Rich. Law, 124, in 1854, under a contract to pay a fixed sum for digging a canal, no time of payment being mentioned, interest was allowed from the completion of the work. In Kyle v. Laurens R. Co. 10 Rich. Law, 382, in 1857, interest was allowed on the value of cotton lost by a common carrier, on the ground that the cotton was a cash article at the place of delivery, and its value was taken on a cash sale, as cash lost by the plaintiff, who was, therefore, entitled to interest on the value. In Arnold v. House, 12 S. C. 600, in 1879, and in Childs v. Frazee, 15 S. C. 612, in 1880, interest was recovered against purchaser of land for cash at a judicial sale.
*In the present case, the objection made at the trial was not because of thos want of a count for interest, but because interest was "not due on an open account.” The case was not one of an open account, in the sense of any rule as to interest, and the holding of the court, that interest was due, was correct.
(114 U. S. 488)
Hopt v. PEOPLE.
(April 20, 1885.) CRIMINAL LAW AND PROCEDURE ORAL INSTRUCTIONS UTAH CODE CRIM. PROC. 1878,
2 257, Cl. 7.
Under the Utah Code of Criminal Procedure of 1878, a judgment upon a verdict of guilty of murder, the record of which states that the court charged the jury, and does not contain the charge in writing, nor show that with the defendant's consent it was given orally, is erroneous, and must be reversed on appeal. Waite, C. J., and HARLAN, J., dissent. In error to the Supreme Court of the Territory of Utah.
This is a 'writ of error to reverse a judgment rendered by the supreme court of the territory of Utah, allirming, upon appeal from the district court of the Third judicial district of the territory, a judgment and sentence of death upon a conviction of murder. The decisions of this court, after former trials of the case, are reported in 104 U. S. 631, and 110 U. S. 574; S. C. 4 Sup. Cr. REP. 202.
One of the errors now assigned in the brief Aled in behalf of the plaintiff in error is that the record did not comply with the statute of Utah requiring that the written charges of the court should form part of the record. * In the copy of the record of the district court contained in the record transmitted by the supreme court of the territory to this court, the statement relating to the charge of the court to the jury, and the exceptions to the charge, are as follows: On May 5th the case was finally argued by the counsel for either party, "and the court charged the jury; defendant's counsel except generally to the instructions given by the court on its own motion, and exception allowed; and a verdict of guilty of murder in the first degree was returned and entered.” And on May 16th, “the time allowed by law for filing the bill of exceptions herein having passed, the court, upon application of defendant's counsel, refuses to further extend the time. Defendant excepts." The record also shows that on May 10th, after judgment and sentence, a notice of appeal was filed by the defendant with the clerk, and a copy of the notice served on the district attorney.
Appended to the brief filed in this court in behalf of the United States is an atlidavit, taken January 7, 1885, of the deputy clerk of the district court, testifying that the counsel for the defendant at the trial in that court, who requested him to prepare the transcript of record on appeal to the supreme court of the territory, requested him to omit the written charge given by the court to the jury at the trial, and told him that no point was to be made by the defendant upon the instructions given by the court to the jury; that the transcript prepared in accordance with that request was delivered by the clerk to the counsel, and by them filed with the clerk of the supreme court of the territory; that by reason alone of that request the written charge was omitted from the record; and that no bill of exceptions was ever filed, or offered to be filed, or presented to the judge of the district court for settlement.
R. N. Baskin, for plaintiff in error. Asst. Atty. Gen. Maury, for defendant in error.
*GRAY, J. By the Utah Code of Criminal Procedure of 1878, the charge of the court to the jury “must be reduced to writing before it is given, unless by mutual consent of the parties it is given orally.” Section 257, cl. 7. Within five days after judgment upon a conviction, the clerk must annex together and file the papers necessary to constitute the record, including “(4) a copy of the minutes of trial; (5) a copy of the minutes of the judgment; (5) the bill of exceptions, if there be one; (7) the written charges asked of the court and refused, if there be any; (8) a copy of all charges given and of
"S. C. 4 Pac. Rep. 250, and 5 Pac. Rep. 564.
the indorsements thereon.” Section 339. The defendant may either take exceptions to the instructions of the court to the jury in matter of law at the trial of an indictment; or he may, without a bill of exceptions, appeal from a final judgment of conviction, on any question of law presented by written charges requested, given, or refused, or any other question of law appearing on the record. Sections 309, 315, 358, 360. The manner of taking an appeal is by filing a notice with the clerk of the court in which the judgment is entered, and serving a copy thereof upon the attorney of the adverse party. Section 363.
The statute expressly and peremptorily requires that the charge of the court to the jury shall be reduced to writing before it is given, unless by mutual consent of the parties it is given orally; and, as has already been adjudged by this court in this case, the giving, without the defendant's consent, of any oral charge or instruction to the jury, is an error, for which judgment must be reversed. 104 U. S. 631. The requirement of the statute that the clerk of the court in which the trial is had shall include, in making up its record, a copy of all written charges, as well as of the minutes of the trial, is equally positive. The object of these provisions, requiring the instructions to be in writing and recorded, is to secure an accurate and authentic report of the instructions, and to insure to the defendant the means of having them revised in an appellate court. When the record shows that the jury were charged by the-court, nothing can excuse the omission to set forth in the record a charge. in writing, except express consent of the defendant that it should be given orally, and that consent must appear of record. The record must either set forth the charge in writing, or a waiver by the defendant of such a charge. If it does neither, it fails to show what is made by express statute an essential requisite to the validity of the conviction, and contains upon its face a fatal error, of which the defendant may avail himself by appeal, without tendering a bill of exceptions.
The duty of making up a complete record is the duty of the clerk; and the duty of seeing that the record contains everything that actually took place, necessary to support the conviction, is the duty of the district attorney. If the copy of the record made up by the clerk of the district court, and entered by the defendant in the supreme court of the territory, was defective in a material point, the district attorney might have moved in the latter court to have the defect supplied by certiorari or other proper process. The defendant and his counsel were under no obligation to cure, and cannot be held to have waived, any defect in the record, but were entitled to take advantage, either in the supreme court of the territory or in this court, of any error apparent upon the record as it stood in that court. Applying these principles to the record before us, the conviction cannot be supported. The record merely states that the court charged the jury, and does not state whether the charge was written or oral. If the charge was written, it should have been made part of the record, which has not been done. If it was oral, the consent of the defendant was necessary, and that consent does not appear of record, and cannot be presumed.
It is hardly necessary to add that the affidavit taken since the entry of the case in this court cannot be considered. The lawfulness of the conviction and sentence of the defendant is to be determined by the formal record, made up and transmitted as required by law, of what was done in his presence at the trial in open court; and not by ex parte affidavits of private*oon versations supposed to have afterwards taken place in his absence between the counsel and the clerk.
Judgment reversed, and case remanded, with directions to order the verdict to be set aside and a new trial granted,
WAITE, C. J., and HARLAN, J., dissented.
(114 U. S. 663)
THE TENNESSEE BOND CASES.:
STEVENS and others 0. MEMPHIS & C. R. Co. and others.
SAME 0. MEMPHIS, C. & L. R. Co. and others.
SAME O. LOUISVILLE, N. & G. S. R. Co.i
SAME 0. MISSISSIPPI & T. R. Co.1
SAME 0. MOBILE & O. R. Co. and others.1
SAME 0. NASHVILLE & N. W. R. Co. and others.1
SAME 0. MCMINNVILLE & M. R. Co. and others.
SAME O. WINCHESTER & A. R. Co. and others.1
SAME 0. KNOXVILLE & K. R. Co. and others."
(May 4, 1885.) State BONDS IN AID OF RAILROAD COMPANIES— Act or TENNESSEE LEGISLATURE, FEE
RUARY 11, 1852—LIABILITY OF RAILROAD COMPANY FOR Such Bonds.
The statutory lien with which the state of Tennessee was invested upon the issue of its bonds to railroad companies under the internal improvement act of February 11, 1852, and the several acts amendatory thereof, bound the property of the com. pany, to which the issue was made, for the payment of the bonds so issued, and the interest thereon, not to the several holders thereof, but only to the state.
HARLAN, J., dissenting. Argued by George Hoadly and Wager Swayne; and submitted by E. L. Andrews, J. C. F. Gayner, E. M. Johnson, and Edward Colston, for appellants.
Argued by C. F. Southmayd, Ed. Baxter, Wm. M. Ramsey, E. H. East, P. Hamilton, and John A. Campbell; and submitted by Wm. M. Baxter, L. W. Humes, D. H. Poston, W. K. Poston, J. B. Heiskell, Geo. Brown, and James Fentress, for appellees.
• WAITE, C. J. These are suits brought by the holders of unpaid bonds of the state of Tennessee, issued to various railroad companies under the act of February 11, 1852, “to establish a system of internal improvements,” to enforce the lien which was vested in the state by that act on the property of the companies respectively as security for the payment of the bonds, and the accruing interest thereon. The sections of the act on which the rights of the parties depend are 1, 2, 3, 4, 5, 6, 7, 10, 12, 13, and 14. These are as follows:
“Section 1. Be it enacted by the general assembly of the state of Tennesset
18. O. 3 Fed. Rep. 673, and
that whenever the East Tennessee & Virginia Railroad Company shall have procured bona fide subscriptions for the capital stock in said company to an amount sufficient to grade, bridge, and prepare for the iron rails the whole extent of the main trunk line proposed to be constructed by said company, and it shall be shown by said company to the governor of the state that said subscriptions are good and solvent, and whenever said company shall have graded, bridged, and shall have ready to put down the necessary timbers for the reception of rails, and fully prepared a section of thirty miles of said road at either terminus, in a good and substantial manner, with good materials, for putting on the iron rails and equipments, and the governor shall be notified of these facts, and that said section, or any part thereof, is not subject to any lien whatever, other than those created in favor of the state by the acts of 1851-52, by the written allidavit of the chief engineers and president of said company, together with the written affidavit of a competent engineer by him appointed, at the cost of the company, to examine said section, then said gov. ernor shall issue to said company coupon bonds of the state of Tennessee, to an amount not exceeding eight thousand dollars per mile on said section, and on no other condition, which bonds shall be payable at such place in the United States as the president of the company may designate, bearing an interest of six per centum per annum, payable semi-annually, and not having more than forty nor less than thirty years to mature.
“Sec. 2. Be it enacted, that the bonds before specified shall not be used by said company for any other purpose than for procuring the iron rails, chairs, spikes, and equipments for said section of said road, and for putting down said iron rails, and the governor shall not issue the same unless upon the affidavit of said president, and a resolution of a majority of the board of directors, for the time being, that said bonds shall not be used for any other pur. pose than for procuring the said iron rails, chairs, spikes, and equipments for said section, and for putting down said iron rails; and the governor shall have power to appoint a commissioner to act, under oath, in conjunction with said president, in negotiating said bonds for the purposes aforesaid, and to act in any other matters pertaining to said company where the interest of the state, in the opinion of the governor, may require it.
“Sec. 3. Be it enacted, that so soon as the bonds of the state shall have been issued for the first section of the road ag aforesaid, they shall constitute a lien* upon said section so prepared as aforesaid, including the road-bed, right of way, grading, bridges, and masonry, upon all the stock subscribed for in said company, and upon said iron rails, chairs, spikes, and equipments when purchased and delivered; and the state of Tennessee, upon the issuance of said bonds, and by virtue of the same, shall be invested with said lien or mortgage without a deed from the company for the payment by said company of said bonds, with the interest thereon as the same becomes due.
“Sec. 4. Be it enacted, that when said company shall have prepared, as aforesaid, a second section, or any additional number of sections, of twenty miles each of said road, connecting with a section already completed for the iron rails, chairs, spikes, and equipments, as provided in the first section of this act, and the governor shall be notified of the facts, as before provided, he shall, in like manner, issue to said company like bonds of the state of Tennessee, to an equal amount with that before issued under the first section of this act, for each and every section of twenty miles of said road so prepared, as aforesaid, but upon the terms and conditions hereinbefore provided; and upon the issuance of the said bonds the state of Tennessee shall be invested with a like mortgage or lien, without a deed from said company, upon said stock, and upon said first and additional section or sections of said road so prepared, upon the rails and equipments put, or to be put, upon the same, for the pay. ment of said bonds and the accruing interest thereon: provided, that if the last section of said road shall be less than twenty miles, or if the railroad pro