the involoos paSsed the property in the wheat without the acceptance and payment of the against it, is utterly untenable., An..fnvoice is not a bill of sale, nor is it evidence of a sale. Standing alone, it is never regarded as .evidence of title." It istrue that in that pasethe from the shipper to the con-
signee were that, unless the drafts were paid, the wheat was to be held; but that only established beyond a that which is the presumption of Jaw in all such cases where shipments are made in such manner, namely, that it is the intention to hold the title arid jus disponendi until the draft£! are paid. This is .the prima facie conclusion, where the shipment is to shipper's order. In this case there is nothing to rebut such presumption, but, on the contrary, much to strengthen it. One of the plaintiffs testified that such class of goods was always cash on delivery. .'I;he order of defendant was accompanied with conditions regarding the. quality. oftha ,goods,and complaints concerning previous shipments. The agent of the steam-ship required an indorsed bill. of lading before he would deliver the goods, although they were marked with defendant's initials. The bank which held the bill of lading retained it because the draft was qot paid. Considering the l,anguage of the order, the complaint regarding former lots, and the manner of shipment, there can be no doubt l;mt w,hat the :vendor intended that all questions should be settled by payment before any title passed by delivery.. There had been no selection or appropriation by the defendant, and it must be held .that there was no delivery, and that no title had passed No person can hold the title to merchandise shipped another, for his protection from loss by non-payment, and not II:t the same time bear the risk of accidental loss. . Verdict and judgment must· be for defendant, and $0 it is ordered.
F A'lRBANKS, Assignee,l1. AMOSKEAG NAT. BANK.
(Oircuit Oourt, D. Ne'IJJ Hamp8hirs.
March 1. 1887.)
Decision on Motion to Quash writ of mandamus aqd certiorari. This was a writ to Daniel Clark, judge, and Benj. F. Clark, clerk, of district court of New Hampshire; commanding them to perfect a record in district court by e-ntering on the docket the term when an opinion was filed in the above case. C. R. Morri.son and Briggs & HUSB, for complainant. Wood & Clark, for defendant.
SHELLEY". COUNTY OF
COLT, J. I am satisfied that the motion to quash must pre",aiI, upon the grounds-First, of want of notice on the part of the defendants; and, second, because the writ is irregular in form, it being a compound writ of mandamus and certiorari. These two objections are so clear on reason and authority is unnecessary to enla.rge upon them. The r\lle is well established in this country no peremptory manda· mus shall issue without notice in some form to the defendant, or a waiver of notice by an appearance. The wisdom of this rule is well illustrated in this case; for surely this court ought not to command a judge of the district court (assuming the power in such a case) to do that which he says wO\lld be. false, without notice to him, and opportunity to be fully · heard. As to the second ground, there seems to be no precedent for combining writs of certiorari and mandamus. Each being distinct, and having its prescribed functions, it would be irregular to join both in one writ. Such a course ma.y lead to much confusion, for rules which apply tu one writ may not apply to the other; whereas, if each is kept distinct, we can deal with it according to the rules of which are applicable to it. Motion to quash sustained.
(O';rcuit Oourt, E. D. Mis8ouri, E. D. A.pril 20, 1887.)
TO LEVY TAX. Where a county court refuses to levy a tax required by law to be levied for the payment of county bonds, a mandamus will go to compel such levy.
SAME-ADJUSTMENT OF .EQUITIES.
Where bonds, maturing in different years, were issued for the improve· ment of certain lands upon which they were made a lien until paid, and the law required the county court to levy enough taxes upon such lands each to pay the annual interest on such bonds, and all bonds maturing the followmg year, allowing at least 25 per cent. for delinquent taxes, and the county court only levied enough, if all collected, to pay the interest and bonds, and allowed nothing for delinquencies, and delinquent suits were instituted, and ,certain tracts sold under judgments recovered, and some of the purchasers were bona fide, held, that this court cannot attempt, in mandamu8 proceedings, to apportion or determine the equities which exist, and will not issue. 8 mandamu8 to compel a second levy upon lands sold, for the payment of bonds due before such sales were made.
This is a proceedinF; by manaamU8 against the judges of the county court of St. Charles county to enforce the satisfaction of a judgment recovered in this court upon certain bonds and coupons issued by St. Charles county, under certain acts of 1869 and 1870, for the improvement by drainage of certain lands lying in said county,. known as the "Marias Temps Clair District," and to that end compel the levy of a sufficient tax to pay said judgment, less the amount already paid thereon· . For other material facts, see 28 Fed. Rep. 875.