Chicago. No such features were disclosed in the Thompson case, and they are, as we think, sufficient not only to distinguish the present case from that one, but to authorize the instructions of which the company complains. The assignments of error bring to our attention numerous exceptions taken by the company to the admission of evidence, and to the refusal to give instructions asked in its behalf. We deem it unnecessary to consider them in detail. So far as they affect the substantial rights of the parties they are disposed of by what has been said touching the charge of the court upon the essential questions in the case. The judgment must, therefore, be affirmed. It is so ordered. ABSTRACTS OF RECENT DECISIONS. SUPREME COURT OF THE UNITED STATES.1 SUPREME COURT OF ILLINOIS.2 COURT OF ERRORS AND APPEALS OF MARYLAND.3 SUPREME COURT OF MISSOURI SUPREME COURT OF OHIO.6 ADMIRALTY. See Errors and Appeals. Collision-Damages. where both Parties are in Fault how estimated -Statute of Limited Liability-Set-off-Practice-In cases of collision of vessels, where both parties are at fault, the rule is to divide the entire damage equally between them, and to make a decree for half the difference between their respective losses in favor of the one that suffers most, so as to equalize the burden: Reynolds et al. v. Vanderbilt et al., S C. U. S., Oct. Term 1882. Semble, there is no good reason why the respondent, in such cases, should not have the benefit of a set-off or recoupment of his damage at least to the extent of the damage done to the libellants, provided that, in his answer, he pleads such set-off or recoupment: Id. At all events, if both parties file libels, the courts of the United States have the power to consolidate the actions, and prescribe one proceeding, 1 Prepared expressly for the American Law Register, from the original opinions filed during Oct. Term 1882. The cases will probably appear in 16 Otto. * From Hon. N. L. Freeman, Reporter; to appear in 104 Illinois Reports. 3 From J. Shaaf Stockett, Esq., Reporter; to appear in 58 Maryland Reports. From John Lathrop, Esq., Reporter; to appear in 132 Massachusetts Reports. 5 From T. J. Skinker, Esq., Reporter; to appear in 75 Missouri Reports. 6 From E. L. Dewitt, Esq., Reporter; the cases will probably appear in 38 or 39 Ohio St. Reports. and pronounce one decree; which decree will be for one-half of the difference of damage suffered by the two vessels, as before stated: Id. The Statute of Limited Liability is not to be applied in such a case, until the balance of damage has been struck; and then the party against whom the decree passes, may have the benefit of the statute (if he is otherwise entitled to it), in respect of the balance which he is decreed to pay: Id. Quare: Whether the benefit of the Statute of Limited Liability can be accorded to any shipowner in the absence of any claim therefor in the pleadings: Id. ASSIGNMENT. Assignee not Legal Representative National Currency Act of 1864. -An assignee for the benefit of creditors, whose trust is administered under the laws of the state, is not the "legal representative" of his assignor, within the meaning of section 30 of the National Currency Act of 1864, which, in case usurious interest has been paid to a national banking association, provides that "the person or persons paying the same or their legal representatives, may recover back in an action of debt, twice the amount of interest thus paid': Barnet v. First National Bank, 38 or 39 Ohio St. Delivery of Savings Bank Book.-The delivery of a savings bank book, although unaccompanied by a written assignment, and with the intention only that it shall be held as collateral security for the payment of a debt, transfers an equitable title to the deposit represented by the book, which will prevail against a subsequent attachment of it by trustee process: Tuft v. Bowker, 132 Mass. ATTACHMENT. Lend Fraudulently Conveyed-Decree avoiding Conveyance subsequent to Attachment.-By the levy of an attachment upon lands which have been fraudulently conveyed, for the debt of the grantor, the attaching creditor acquires a lien which is not disturbed by a decree in chancery setting aside the fraudulent conveyance, and subjecting the property to sale, for the payment of a judgment recovered by another creditor after the levy of the attachment. The levy of the attachment, before the recovery of judgment by the other creditor and the filing of his bill, creates a prior lien on the property: McKinney et al. v. Farmers' Nat. Bank et al., 104 Ill. ATTORNEY. Right to Compromise Suit-The compromise of a pending suit by an attorney having apparent authority, will be binding upon his client, unless it be so unfair as to put the other party upon inquiry as to the authority, or imply fraud: Black v. Rogers, 75 Mo. BILLS AND NOTES. Right of Drawee against Drawers-If the drawee of a bill of exchange is without funds of the drawer and pays the bill, he is entitled to be reimbursed by the drawer; and if there are several drawers part of whom are securities for the others, all are alike liable to reimburse the drawee in the absence of any understanding to the contrary: Church v. Swope, 38 or 39 Ohio St. Where a bill of exchange is made payable to S. and at the time of its execution, C. signs his name on the back, he becomes a party to the request upon the drawee to pay the bill; and in an action by the drawee to recover the amount paid in taking up the bill, C. is to be regarded as a drawer: Id. BOND. Liability of Signer whose Name does not appear in Bond.-To charge one as obligor, who has signed a bond or written undertaking, it is not necessary that his name should appear in the body of such instrument, provided the intention that he shall be so charged appears clearly from its terms taken in connection with the circumstances attending its execution: Partridge v. Jones, 38 or 39 Ohio St. McLain v. Simington, 37 Ohio St. 484, followed and approved: Id. COLLISION. See Admiralty. COMMON CARRIER, Regulation as to Price of Ticket purchased on Curs-Re-entry of Passenger after Eviction.-A regulation of a railroad corporation, that a passenger who shall purchase a ticket before entering its cars shall be entitled to a discount from the advertised rates of fare, but, if such ticket is not purchased, the full rate of fare shall be charged, is a reasonable regulation, and does not violate a rule prescribed by statute, that the rates of fare shall be the same for all persons between the same points: Swan v. Man. & Law. Railroad, 132 Mass. A passenger who enters a railroad car at one station, and is properly expelled from it for nonpayment of his fare, at a second station, is not entitled to be carried to a third station by the same train of cars, by tendering the fare between the second and third stations: Id. Act prohibiting unjust Discrimination in Rates-Constitutionality of -A State law to prevent the unjust discrimination in rates for the transportation of passengers or freight from a point within to a point without the State, though it may incidentally affect commerce between States. cannot be said to be a law regulating commerce among the States, within the meaning of the Federal Constitution, especially when it does not purport to exercise control over any railroad corporation except those that run or operate in the State, and which have domestic relations with the people of the State: People v. W., St. L. & P. Railway Co., 104 Ill. CONFLICT OF Laws. Lex Fori-Lex Loci Solutionis.-Defendant executed and delivered in New York a bond conditioned to indemnify the obligee against all loss or damage arising from the liability of the latter on an appeal bond which he had entered into in Louisiana, as surety, for a certain railroad company, defendant in a judgment rendered against it in the courts of that state, and which, being affirmed, he was compelled to pay. By the law of New York, any written instrument, although under seal, was subject to impeachment for want of consideration; and a preexisting liability, entered into without request, which was the sole It consideration of the bond of indemnity sued on, was insufficient. was otherwise in Louisiana. Held, that the question of validity of the bond, as dependent upon the sufficiency of its consideration, was not a matter of procedure and remedy, to be governed by the lex fori, but belonged to the substance of the contract, and must be determined by the law of the seat of the obligation: Pritchard v. Norton, S. C. Ú. S., Oct. Term 1882. In every forum a contract is governed by the law with a view to which it is made, because by the consent of the parties that law becomes a part of their agreement; and it is therefore to be presumed, in the absence of any express declaration or controlling circumstances to the contrary, that the parties had in contemplation a law according to which their contract would be upheld, rather than one by which it would be defeated: Id. The obligation of the bond of indemnity was either to place funds in the hands of the obligee, wherewith to discharge his liability when it became fixed by judgment, or to refund to him his necessary advances in discharging it, in the place where his liability was legally solvable: and as this obligation could only be fulfilled in Louisiana, it must be governed by the law of that state as the lex loci solutionis: Id. CONSTITUTIONAL LAW. See Common Carrier; United States Gov ernment. CONTRACT See Conflict of Laws. Alternative Agreement.-When the agreement is in the alternative, to do some particular thing, or pay a given sum of money, the court will hold the party failing, to have had his election, and compel him to pay the money: Pennsylvania Railroad Co. v. Reichert, 58 Md. CORPORATION. Right to Purchase its own Stock-Lien of Creditors on Capital Stock-Private corporations may purchase their own stock in exchange. for money or other property, and hold, re-issue or retire the same, if it is done in entire good faith, and the exchange is of equal value, and is free from all fraud, actual or constructive, and if the corporation is not insolvent or in process of dissolution, and the rights of creditors are not affected thereby: Clapp v. Peterson, 104 Ill. The capital stock of an incorporated company is a fund set apart for the payment of its debts, and its creditors have a lien in equity. If diverted, they may follow it as far as it can be traced, and subject it to their claims, except as against holders who have taken it bona fide for a valuable consideration and without notice: Id. Malicious Prosecution-A corporation is liable to an action for malicious prosecution instituted by its authority. Gillett v. Mo. Valley Railroad Co., 55 Mo. 315, overruled: Boogher v. Life Association of America, 75 Mo. Assignment for Benefit of Creditors-Insurance Company.-A corporation may make an assignment for the benefit of creditors: Schockley v. Fisher, 75 Mo. But an insurance company after it has violated the insurance laws cannot make such an assignment and thus withdraw itself from the control of the insurance department: Williams v. Commercial Ins. Co., 75 Mo. COSTS. See Executors and Administrators. COVENANT. Agreement to Build and Pay for Party Wall-Covenant running with the Land. An agreement under seal between the owners of adjoining premises, whereby one is to build a party wall, one-half on the ground of each, for building purposes, and the other is to pay for one-half the cost of its construction when he uses the same, or any part thereof for a building upon his premises, when executed gives to each of the parties an easement on the lot of the other for the purpose of support of their respective buildings, which becomes appurtenant to their several estates, and as such passes to their respective assignees by any mode of conveyance that passes the title to the land itself: Roche v. Ullman, 104 Ill. CRIMINAL LAW. See Errors and Appeals. Larceny outside of the State-Indictment for bringing Stolen Goods into the State. When a person steals goods in another state and brings them into this, the person stealing cannot be indicted and punished here for the crime committed in the former state; but the act of bringing such stolen goods into this state is a new larceny, for which the party may be indicted in the courts of this state and be punished: Worthington v. The State of Maryland, 58 Md. DAMAGES. See Admiralty EQUITY. Reimbursing Party for Taxes paid by Mistake.--If a party pays taxes on land which belongs to another, under the mistaken belief of ownership, a court of equity will not grant him any relief by which he may be reimbursed the sum paid: St. Louis, Jacksonville and Chicago Railroad Co. v. Mathers, 104 Ill. Joinder of Parties-When several Creditors may join in one Suit Two or more creditors of an insolvent corporation, after having recovered judgments for their several demands, and the return of executions issued thereon nulla bona, may unite in filing a creditors' bill against the corporation and its stockholders to reach unpaid subscriptions to the company, and such bill is not multifarious, as in such case there is an identity of interest in the question involved and in the relief sought, and the separate injury sustained by each complainant is produced by the same cause or wrongful acts, and also because it prevents multiplicity of suits, which is of itself a distinct source of equity jurisdiction: Hickling v. Wilson, 104 Ill. ERRORS AND APPEALS. Appeal to U. S. Supreme Court $5000 Limit- When a Decree in Admiralty not within.-A barge and her cargo having been injured in a collision with a steamer, their respective owners united in a libel against VOL. XXXI.-10 |