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Bonds of Municipal Corporations-Irregularity in Election by which they were authorized-United States Court when not bound by Decisions of State Court.-Where a municipal corporation in pursuance of legis. lative authority voted a donation to a railroad company, and issued bonds to pay the same which recited, on their face, that an election had been held in accordance with the authorizing statutes: Held, 1. That a defect in the method of holding the election by which the donation was voted in no way impairs the validity of the bonds in the hands of a bona fide holder. 2. That a decision of the state Supreme Court declaring that in consequence of such irregularity the bonds are void in the hands of bona fide holders is not binding on the U. S. Supreme Court. The proposition is one which falls among the general principles and doctrines of commercial jurisprudence, as to which it is the duty of the latter court to form an independent judgment, and in respect to which it is under no obligation to follow implicitly the conclusions of any other court however learned or able it may be: Town of Pana v. Bowler, S. C. U. S., Oct. Term 1882.

NATIONAL BANK. See Bank.

Power to receive Special Deposits-Liability for-Evidence.-The power to receive special deposits is conferred by the National Banking Act, upon banks organized under that act: First National Bank of Mansfield v. Zent, 38 or 39 Ohio St.

Where a national bank has been accustomed to receive United States bonds as special deposits, gratuitously, it is liable for any loss thereof occurring through the want of that degree of care which good business men would exercise in keeping property of such value: Id.

A demand of such bonds, and a refusal by the bank to deliver the same, with no other explanation of such refusal than the statement that the bank has no such bonds in its possession, furnish sufficient proof of loss by such negligence as will render the bank liable therefor: Id.

Construction of National Banking Acts and Section 3466 Revised Statutes-Claims of United States when not Preferred.-The law of 1797, re-enacted in the Revised Statutes, giving priority to the demands of the United States against insolvents cannot be applied to demands against National Banks which have failed. The provisions of that law and of the national banking law being, as applied to demands against national banks, inconsistent and repugnant, the former must yield to the latter, and is, to the extent of the repugnancy, superseded by it: National Bank v. The United States, S. C. U. S., Oct. Term 1882.

At the time of its suspension a national bank had on deposit certain postal funds" and "money-order funds" deposited by a deputy-postmaster. The Treasury Department, over and above a sum sufficient to secure the circulation of the bank's notes, had $30,000 belonging to it, but the liabilities of the bank exceeded its assets. Held, that the claim of the United States for moneys so deposited by the deputy-postmaster was not a preferred debt nor could it be set off against the surplus moneys remaining in the treasury of the proceeds of bonds deposited as security for the circulating the notes of the bank: Id.

NEGLIGENCE.

Railroad-Rate of Speed-Contributory Negligence-Duty of Court.

-Aside from statutory or municipal regulation, no rate of speed at which a railroad train may be run is negligence per se: Powell v. The Missouri Pacific Railway Co., 76 Mo.

In an action grounded upon allegations of negligence, if the undisputed facts show that notwithstanding the defendant's negligence, the plaintiff would not have sustained the injuries complained of but for his own negligence directly tending to produce them, it is the duty of the court to direct the jury to find for defendant: Id.

Railroad-Escape of Fire-Presumption.-There is no legal presumption that a railroad company, while in the exercise of its lawful right to run its locomotives and trains over its road and to use fire in so doing, will not permit fire to escape from them: Palmer v. Missouri Pacific Railway Co., 76 Mo.

The fact that a railroad company uses good machinery and the most approved appliances to prevent the escape of fire, and has careful and competent men in charge thereof, will not, in case fire does escape, of itself rebut the prima facie inference of negligence or exempt the company from liability for damages caused thereby: Id.

Railroad companies must use reasonable precautions to prevent fire from being carried from their locomotives by such winds as are usual and ordinary at the season and the place, and are only relieved from making provision against extraordinary and unusual winds: Id.

NOTICE. See Bank.

ORDINANCE.

Rules of Construction-Pay of Officers.-The charter and ordinances of a city stand in the same relation to each other as the constitution and statutes of a state, and the rules applicable in deciding questions of conflict between the latter may be resorted to to determine similar questions between the former: Quinette v. City of St. Louis, 76 Mo.

Where a city charter provided that judges of election should receive no pay, and repealed all existing ordinances inconsistent with its provisions: Held, that an ordinance then in force providing for the pay of judges and clerks of election was repealed only so far as it related to the judges, and the clerks were entitled to pay at the rate fixed by the ordinance: Id.

PARDON.

Fraud in Procuring-Effect of, on Habeas Corpus after re-arrest An unconditional pardon by the governor, delivered to and accepted by one convicted of felony, cannot be treated as a nullity, in a proceeding on habeas corpus prosecuted by such person against one who re-arrested him basing his right to do so on the ground that the pardon was granted by reason of acts of such convict affecting his health, done with the fraudulent purpose of obtaining such pardon, and by reason of fraudulent representations with respect to his health, made by such convict with like fraudulent purpose: Knapp v. Thomas, 38 or 39 Ohio St.

PARTNERSHIP.

Employment for Share of Profits.-A contract was made between E. and the Mayor and City Council of Baltimore, for the performance by E. of certain work for said corporation. The contract provided for the

retention by the city of one-fifth of the money due upon the monthly estimates, until the work was completed and accepted. Subsequently a written agreement was made between E. and R. by which R. was to superintend the work, and to receive therefor from E. one-sixth of the net profits arising from the contract with the city. It was further stipulated by this agreement that R. should have the privilege of drawing a fixed sum per month, to be charged against said one-sixth net profits, and should have the privilege of inspecting the books of account relating to the work; but in the concluding clause it was expressly agreed that R. was not a partner with E. in said work, nor was he to be in any manner liable for any damages growing out of its prosecution, other than as such superintendent. A bill was filed by R. against E. and certain assignees of E.'s interest in the contract with the city of Baltimore, and against the said city, for a discovery, and account, and a decree for the amount due him, and for a receiver to receive all sums payable by the city under its contract, and an injunction to prevent E. or his assignees from collecting, and the said city from paying to them, the sums due under said contract. On demurrer to said bill, it was Held, that in the face of the provision in the agreement between E. and R. that R. should not be a partner, it could not be said that the other clauses of the agreement, by which it was stipulated that he should receive one-sixth of the net profits growing out of the contract, as compensation for his management and superintendence of the work, made him such partner: Reddington v. Lanahan, 59 Md. PLEADING. See Equity.

PUBLIC POLICY. See Contract.

RAILROAD. See Eminent Domain; Negligence.

REMOVAL OF CAUSES.

Separable Controversy-Local Prejudice Act.-A suit to recover certain real estate occupied by one Myers, a citizen of New York, was brought, in 1873, by citizens of North Carolina, in the state court, against Myers alone; and in 1877 was amended, bringing in other defendants, citizens of North Carolina, who, it was alleged, held the legal title. Myers alone answered the amended complaint, in Sept. 1877, and in March 1878 petitioned for removal, filing an affidavit to the effect that he had reason to believe, and did believe, that from prejudice or local influence he would not be able to obtain justice in the state court: Held, 1. That the application was too late to secure the benefit of the separable controversy provision in the Act of 1875. Such an application should have been made at or before the term at which the cause could be first tried, or rather, as this suit was begun before the Act of 1875 was passed, it should have been at or before the term at which the cause could be first tried after the act went into operation. 2. That while there is no doubt that the principal controversy is between Myers and the plaintiffs, yet as the legal title is thought to be in the other defendants, and the plaintiffs require the presence of the trustee defendants, in order to get Myers out of possession, it follows that they are not nominal but necessary parties; and as, under the local prejudice act, there can be no removal, unless all the necessary parties on one side

of the suit are citizens of different states from those on the other, the cause should be remanded to the state court: Myers v. Swan, S. C. U. S., Oct. Term 1882.

RESCISSION

Purchaser must rescind in toto.-A party will not be permitted to affirm a contract in part, and rescind as to the residue. If he rescinds at all, he must do so in toto. The opposite party must be placed in as good a condition as he was before the sale by a return of the property purchased, unless it is entirely worthless: Harzfeld v. Converse, 105 Ill.

Where the plaintiff, in an action to recover back a portion of the purchase price of certain goods, had purchased of the defendant six cases of beavers under an entire contract, and upon receiving the same made no objection to any part of them, and did not, before suit, offer to return to the defendant all the goods, but confined his offer to return to a portion, and expressly elected to retain the other part, it was held, that the plaintiff could not recover, in an action for money had and received, the price of the goods objected to: Id.

SALE. See Rescission.

SHIPPING.

Injury to Property on Shore-Jurisdiction of State Courts.-Where, through the negligence of those managing a steam tug-boat in towing a schooner in the navigable waters of the Chicago river, the schooner is run into an elevator situated on the land, breaking the same, and causing the loss of a quantity of grain, the tort is not a maritime one and within the exclusive jurisdiction of a court of admiralty. In such case the state courts may afford a remedy for the injury: Johnson v. Elevator Co., 105 Ill.

SPECIFIC PERFORMANCE.

Doubtful Title-When good Defence-Every purchaser of land has a right to demand and to have a title which shall enable him not only to hold his land, but to hold it in peace; and if he wishes to sell it to be reasonably sure that no flaw or doubt will come up to disturb its marketable value. But the doubt must be considerable and rational, such as would, and ought to induce a prudent man to pause and hesitate; such as would produce a bona fide hesitation in the mind of the judge passing upon the title: Gill v. Wells, 59 Md.

STATUTE.

Construction-Previous Construction in other State.- Where the statute of one state or country is re-enacted in another, the courts of the latter state will place the same construction on it as had been given to it by the courts of the state where it was originally enacted: Skrainka v. Allen, 76 Mo.

STOCK. See Estoppel.

SURETY.

Verbal Notice to proceed against Principal-Extension of Time-A surety cannot base a claim to be released from his obligation on a verbal

notice to the creditor to proceed against the principal debtor. To be available the notice must be in writing: Petty v. Douglass, 76 Mo.

Part payment of a note after maturity is no valid consideration for an extension of time: Id.

TRADEMARK.

Bill to restrain use of Trademark dismissed when Trademark misrepresented the Person by whom, and place where, the Article was Manufac tured.-The Manhattan Medicine Company filed a bill to restrain defendants from using the trademark "Attwood's Genuine Physical Jaundice Bitters, Georgetown, Mass.," claiming to be the exclusive owner of the formula and recipe for making the medicine, and of the right of using the said name or designation. It was admitted that whatever value the medicine possessed was given to it by its original manufacturer, Moses Attwood, who manufactured it at Georgetown, Mass., and that it is now manufactured by the plaintiffs in New York city. Held, that the statement that the article was manufactured in a particular place, by a person whose manufacture there had acquired a great reputation, when, in fact, it was manufactured by a different person at a different place, is a fraud upon the public which no court of equity will countenance, and that the bill must be dismissed: Medicine Co. v. Wood, S. C.-U. S., Oct. Term 1882.

The object of a trademark being to indicate, by its meaning or association, the origin or ownership of the articles, it would seem that when a right to its use is transferred to others, either by act of the original manufacturer or by operation of law, the fact of transfer should be stated in connection with its use; otherwise a deception would be practised upon the public and the very fraud accomplished, to prevent which courts of equity interfere to protect the exclusive right of the original manufacturer: Id.

TRIAL.

Practice—Admitting Evidence out of Order.-A sound exercise of the discretion vested in the trial courts of determining whether or not evidence should be received out of time, requires that when it appears that failure to offer material evidence in proper time was the result of inadvertence and that it was not kept back by a trick or for any unfair purpose and that the other party will not be deceived or injuriously affected by it, it should be let in even after a demurrer to the evidence has been sustained. For refusal of the trial court so to do, the appellate court will reverse: Tierney v. Spiva, 76 Mo.

UNITED STATES COURTS. See Municipal Corporation.

Indorsee of Note secured by Mortgage-Act of Congress March 3d 1875. c. 137.-When a promissory note, negotiable by the law merchant, is made by a citizen of one state to a citizen of the same state, and secured ny a mortgage from the maker to the payee, an indorsee of the note can, since the act of March 3d 1875, c. 137 (1 Sup. Rev. Stat. 173), sue in the courts of the United States to foreclose the mortgage, and obtain a sale of the mortgaged property: Tredway v. Sanger, S. C. U. S., Oct. Term 1882.

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