If

and responsibility, and descriptions, and full references to the same. he has at hand opportunities to inquire readily as to these, it is his duty in law so to do for it is not his own loss he is to guard against, but he is to protect the public also.

Obtaining money by "bogus checks" is a very common offense. This is an instance where false conduct (as the mere throwing down of a check with request for change, or making it the precedent act of obtaining property) will sustain the allegation of a false pretence. Here the distinction, as to the past and the future, often misleads. A check passed to-day, but dated ahead, will be no false pretence, for the hypothesis that the money may be deposited in the designated bank, will accompany the primary presumption of innocence; and the making of the check, or the presenting of it, coupled with general knowledge of mercantile usage, without any assertion being made, is of itself a direct pretence in law. And it is enough to prove the altering of the check, and that the defendant had no "account" (not funds) at the bank-or that, having had an account, he had formally closed it, or had been ordered by the bank so to do, and been forbidden to reopen account.

The pretences need not be made by a party in person in order to render him liable. A letter dated in Chicago and received in New York, uttering false stories to induce credit, would render the writer liable in the place where the letter was received; or if he sent an agent from the distant place to make the representation, he is guilty at the place of making. This doctrine of criminal proxy in the offense under consideration, was eloquently and learnedly discussed in the case of the People vs. Adams, a Western forwarder, who obtained goods from the house of Suydam & Co., and, although he was not in New York until trial, was committed.

There is no offense which, when prosecuted, is so difficult to obtain conviction upon. In the first place magistrates and grand jurors, with the petit jury in the last place, are possessed with the idea of pecuniary interest in the complainant over and above that public regard which should control all prosecutions, and therefore regard the evidence with mistrust, and their moral convictions insensibly require a greater degree of evidence than is asked in ordinary offenses.

The large number of complaints made, which are either frivolous or avaricious, do much to prejudice public prosecutors. Said a judge in a neighboring State, "The act is intended to punish a criminal offense, not to be used as a means of collecting debts, however just; and to suffer it to be perverted for that purpose, will necessarily lead to great injustice and oppression. We are not without reason for believing that it has been already used as an instrument to wring money from the sympathy and fear of friends, as well as a means of extortion from the timid on pretended demands." This shows that a similar feeling has been imparted to the bench. The very many frivolous and debt-collecting cases thus prejudice the few good ones, and there is no doubt upright merchants and strong cases have frequently suffered in consequence. But the bench is disposed to be extremely technical on the questions of false pretences, and thus innate difficulties are enhanced by those extrinsic.

Therefore, in all prosecutions, care should be taken to have the case as strong as possible at the outset. The point most necessary to fortify is the second part of the offense-that the pretences are false. And inasmuch as in criminal cases for the prosecution no commission to take testi

mony issues, and the witnesses are compelled to confront the accused, much of evidence is necessarily lost. The great majority of offenders are out of the State-the pretences they made were of home matters, and foreign witnesses cannot be compelled to attend. If the pretences were of their home means, their ownership at their residence, etc., as is nearly always the case, then the best evidence comes from the vicinage where the offender lives. It is always the most difficult thing to prove a negative. Most proof in false pretences, as to the fraudulent lie, unfortunately calls for this kind of ultimate proof.

It only remains to add that persons who complain of false pretenders, and desire to be successful, must " come into court with clean hands." If the transaction on their part is tainted with moral obliquity, as in the Court of Chancery, "those who seek equity must do equity." So in the Court of People's Pleas-they who seek to punish dishonesty in this matter, must not have been particeps criminis. And the cases are numerous where the lying seller, although outwitted by the lying buyer, finds that he is not allowed the use of the people's writs to punish the crime against him.

The brief moral of the present condition of "criminal jurisprudence" regarding false pretences, is that merchants should be doubly cautious as to who they sell to; and that if they sell upon unsupported or uncorroborated pretences, they must put into the crucible of profit and loss the elements of legal technicalities and difficulties against their punishing the offender. Especially should the members of the commercial community endeavor not to prejudice their good cases by prematurely originating those that are frivolous, or to be used as collecting suits.

JOURNAL OF MERCANTILE LAW.

BONDHOLDERS-CONSTITUTIONALITY OF CERTAIN ACTS OF NEW JERSEY.

United States Circuit Court for the District of New Jersey, April, 1857. Judge Grier, presiding. John M. Martin vs. the Somerville Water Power Company :-

In this case the constitutionality of certain acts of the Legislature of New Jersey, which authorized the sale of the property of the company free and clear of all prior incumbrances, was argued at the last term of the court held at Trenton by S. B. Ransom, Esq., and the complainant in person, and by the Hon. William O. Dayton and A. O. Zabriskie, Esq., for the defendants.

In 1848, the Somerville Water Power Company, incorporated by the Legislature of New Jersey, being indebted in the sum of $50,000 to certain creditors in New York and Connecticut, for moneys advanced to the company, issued one hundred negotiable bonds for $500 each, payable at the Phenix Bank in the city of New York in 1853, with interest, and delivered ninety-six of them to such creditors in part payment of the company's indebtedness.

To secure the payment of these bonds the company mortgaged all its real estate, franchises, water-power, and property, at Somerville to the present chancellor and two other well-known gentlemen of New Jersey, as trustees for the holders of the bonds.

Many of these bonds were sold in the New York market, and the complainant became the owner of a part of them, for value. In the mean while, the company having become embarrassed, transferred and merged itself into another corpora

tion of New Jersey, called the Hudson Manufacturing Company, and the trustees transferred the mortgage to the last company, subject to the rights of the bondholders under it.

At length both companies became so embarrassed, and their property so incumbered by judgments, decrees, sheriffs' sales, and injunctions that it was deemed almost impossible to make a title thereto, by means of regular legal proceedings in the State Courts, and, as usual, the Legislature was resorted to for aid.

Accordingly, an act was passed in the winter of 1856, "to relieve the creditors and stockholders of the Somerville Water-Power Company and of the Hudson Manufacturing Company," and also a supplementary act, by which certain persons therein named were authorized to sell the whole of the mortgaged property at public sale, to the highest bidder, free from all incumbrances, and after paying expenses and certain costs, to distribute the proceeds amongst the creditors, according to the priorities of their several liens. In May following, the property, which had been valued at $150,000, was knocked down at $50,000.

In this stage of the proceedings, the complainant, knowing that the sum for which the property was sold would not pay the amount secured by the mortgage and interest, and believing that the property at a fair sale under a decree of foreclosure would sell for more than enough for that purpose, filed his bill in the federal court for the foreclosure of the $50,000 mortgage, and praying that the act in question be decreed unconstitutional and void, on the ground that they were in violation of the obligation of the contract between the bondholders and the Somerville Water-Power Company, and repugnant to the constitutions of the United States and of the State of New Jersey.

The question came up on demurrer to the complainant's bill, and was decided for the complainant, the court holding the acts unconstitutional and void, and granting a perpetual injunction against all proceedings under them.

At the Circuit Court, now in session at Trenton, was delivered the following opinion by Judge Grier.

GRIER, J. The demurrer to the bill in this case has been entered for the purpose of having a final hearing and judgement of the court on the validity of the act of the Legislature of New Jersey, authorizing the receiver to sell the premises in question free and discharged from the heir and estate of the mortgagees.

It is contended that this legislation is forbidden both by the constitution of the State and that of the United States.

Previous to the 29th of June, 1844, the State of New Jersey was governed by the old colonial constitution adopted on the 2d of July, 1776. This contained no bill of rights nor any clear limitation of the powers of the Legislature. The history of New Jersey legislation exhibits a long list of private acts, and anomalous legislation on the affairs of individuals, assuming control over wills, deeds, partitions, trusts, and other subjects usually coming under the jurisdiction of courts of law or equity; consequently the decisions of the old constitution cannot be decided as precedents applicable to the present one, which carefully defines and limits the powers entrusted to the Legislature, the executive, and the judiciary. It is very desirable that the constitution of a State should be construed by its own tribunals, and we regret that the researches of counsel have not furnished us with such precedents. The case of Potts ts. The Delaware Water Company, (1 Stockton, 592,) has reference to an act passed before the adoption of the present constitution. That act was declared by the court "not to impair the obligation of any contract," and to be remedial only. The first mortgagees gave their assent to the sales made under it, and others could not object to it as made without their authority. In this important respect it differs from the present case, and cannot be relied on as a precedent.

The validity of this act has been challenged on several grounds. If found invalid on any one, we need not examine the others.

The constitution of New Jersey has not only carefully limited the powers of the Legislature, and separated them from those of the judiciary, but it adopts the

"or de

prohibitions of the Constitution of the United States against ex post facto laws, and laws impairing the obligations of contracts, and with this addition, priving a party of any remedy for enforcing a contract which existed when the contract was made."

It is not contended that the act comes under the category of an "ex post facto law;" and if it be merely remedial in its character, as defendants contend, there can be no valid objection to it under this head of the constitution.

Does it impair the obligation of the contract between the mortgagees and mortgager, or deprive the mortgagees of any remedy which existed when the contract was made?

The act and supplement must be construed together as forming one act. It is entitled "An act to relieve the creditors and stockholders of the Somerville Water-Power Company," &c. It sets forth in its preamble certain representations made, no doubt, by those who formed the act, showing plausible reasons for such legislative interference. But the validity of the act must be judged from its actual operation on the rights of parties subjected to it, and not by the pretences put forth by the preamble. This may show that the Legislature acted in good faith, and believing that their interference would wrong no one, but not that such was the actual result. Legislators cannot be too cautious, when asked to interfere, by special legislation for particular persons or particular cases, on ex parte representations. They cannot call all parties before them, and judge upon a full hearing-this is for the courts. Their action may not always be unjust, but it may be, and often is, tyrannical and injurious.

Let us inquire what is the contract, and how is the effect by this act?

The mortgagees of this property held the legal title in trust for the several bondholders, who may properly be treated as the real mortgagees. They may be said, in common parlance, to have a "lien" or "security" on the property mortgaged, but they have it by force of their legal title to the property. It is an estate in fee simple, defeasible only by payment of the debt. When the condition of the obligation is broken, the mortgagees may enter on the premises and recover the rents, issues, and profits thereof, till their debt is satisfied. If they see fit, they may appoint an agent or attorney who may enter on the land under their direction and make sale of the same in satisfaction of the debt This disposal of the mortgaged premises is to be made according to the discretion and judgment of the mortgagees, and not of another. No subsequent incumbrancer or assignee of the equity of redemption can divest their estate contrary to their will, unless by a tender of the debt due. They cannot be compelled, to suit the convenience of others, to put up the property to sale, at a time or in a manner which might lessen or injure their security.

Now, by this contract the estate of the mortgagees is defeasible only by payment of the debt. But this act permits the receiver to dispose of their estate, and does not provide that the debt shall be first fully paid. It permits the receiver to sell for any sum, whether it be sufficient for such purpose or not, and the receiver has made a contract of sale for a sum insufficient by many thousands of dollars. This is making a new contract for the parties and impairing the obligation of the mortgage. It may be truly said, "'tis not so written in the bond." The mortgagees may dispose of their security for less than the amount of their debt, but no other person can.

2d. The obligation of this contract is moreover impaired by this act, in that it gives a precedence to certain indefinite costs and charges, (not costs of the sale merely,) to be paid out of the proceeds of the property before the mortgage debt. This is in direct contravention of the contract by which the estate was conveyed to the mortgagees, free from all charges and incumbrances.

3d. The mortgagees had by their contract a remedy, to be used at their own option and discretion, as to time and mode of sale; and, by law, they had the remedy of entry on the premises, and receiving the rents and profits. This act deprives them of both, contrary to the letter of the constitution of New Jersey, without invoking the aid of the cases of Bronson vs. Kinzie, (1 Howard, 311,) and McCracken vs. Haywood, (2 Howard, 611.)

We have not thought it necessary to review the very numerous cases on the subject, or to attempt any metaphysical definition of what constitutes "the obligation of a contract," as it is clear that any legislation which defeats the estate of the mortgagee without payment or tender of the whole debt due on the bonds, which gives a preference to posterior liens, and which deprives the mortgagee of this remedy given by the covenants of his contract, as also that given by the law of the land, “ impairs its obligation," and is contrary to the letter and spirit of the constitution of New Jersey. This act may be remedial as to the owners of the equity of redemption and those having liens against it, but the mortgagees have a right to say non in hac foedera veni. We have never agreed to have our estate defeated to suit the convenience of others.

The complainant is entitled to a d cree making the injunction perpetual-but the defendants have leave to answer as to the other charges of the bill.

FIRE INSURANCE-FRAUDULENT REPRESENTATION, ETC.

Supreme Judicial Court of Massachusetts-March Term, 1857. By Judge Dewey. The Bowditch Mutual Fire Insurance Company, in review, rs. Isaac Winslow, et al. In the original action on a fire policy, the verdict and judgment were against the company.

The policy was originally effected by Joseph Morrill, and by him assigned, with the consent of the company, to the defendants in review. A loss occurred. The assignees sued in their own names, and recovered. On two grounds the company ask for a review. First-the false and fraudulent representations of Morrill, as to the amount of incumbrance on the property, hè stating that it is subject to one mortgage for $2,000, and concealing the fact that there was a second mortgage for $800. Second-The failure on the part of Morrill to pay assessments, whereby it is alleged that the policy became forfeited. This last ground arises after the assignment to Winslow, et al., and does not affect them, as no demand was made on them. What would be the effect of such a demand, we do not now consider. But the false statements as to the amount of incumbrance on the property rendered the policy invalid, both in his hands and in the hands of his assignees. The assignment does not change the relation of the parties. The mortgages were still existing. Morrill simply transferred to Winslow, et al., his rights.

It is contended that the false representations could not affect the policy, unless they were material, and that they were not material, as the property was more than ample to cover all incumbrances; but that fact would not give validity to a policy obtained upon false representations. Judgment for the plaintiffs in review.

ACTION OF REPLEVIN-CONDITIONAL SALE-CIGARS.

Supreme Judicial Court of Massachusetts-March Term, 1857. Opinion by Judge Metcalf. Daniel Deshon vs. Edward B. Bigelow, et al.

This was an action of replevin for a quantity of cigars. The defendant claimed under a sale from Pinkham, Adams & Co. There was evidence tending to show that the sale was conditional, and that the conditions had not been complied with. If this was a sale upon condition, then nothing passed to the vendee, unless the condition was complied with. This has been long settled, as against attaching creditors of the vendee; and more recently, as against bona fide purchasers from the vendee. And in the present case, if the sale was upon condition, which had not been waived, nor a long delay been permitted to intervene before seeking to recover the property, the jury might properly find for the plaintiffs. This they did. It was also contended that the purchase was fraudulent; but that is immaterial, since the jury found that the sale was upon condition.

Exception overruled and judgment for plaintiff.