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facturing, selling and leasing carpet exhibitors, and that plaintiff's business success and profits have been and are injuriously affected by means thereof. The circulars represent "that plaintiffs, or other irresponsible parties, are sending out circulars professing to have a new Carpet Exhibitor, intending to make a considerable profit before legal proceedings put a stop to their nefarious efforts. That plaintiffs had no right or authority to make, sell or lease any carpet exhibitors, and that any merchant or responsible person, purchasing, leasing and using such exhibitor, is liable in damages and costs of prosecution," etc. That the plaintiffs have been making such exhibitors under a patent issued to plaintiff Peterson, and selling and leasing the same, and that circulars issued by defendants have injured and are injuring their business by debarring parties from buying, leasing and using the same, and that defendants, one or more of them, declare that it is not proposed to uselessly expend money in proceeding legally against the plaintiffs at present, to protect their interest, etc.

It is plain from the case presented upon this motion, that these circulars, signed and published by the defendants, are calculated to and intended to, and do in fact injure the plaintiff's business. Will the law permit the continuance of such publications?

It is legal and proper for parties claiming rights under letters patent, to publish the rights claimed by them, and to issue notice and warning of prosecution of all parties who violate the rights secured by such patent, if done in good faith, and the court will not restrain publications and circulars of that character. Hovey v. Rubber Co., 57 N. Y. 119.

In this case the plaintiffs claim the right to make and dispose of a carpet exhibitor under the patent granted to Peterson, and do not deny the existence or validity of the patent granted to defendant Richardson, or defendant's rights thereunder, to make and dispose of the same. The defendants, however, do deny the validity of plaintiffs' patent and the rights under the same, claimed and exercised by plaintiffs. This court has not jurisdiction to try and determine disputed rights and claims under patents granted by the United States government. But that is not the real question involved in this controversy between the parties. The plaintiffs, while not denying the defendant's rights under this Richardson patent, claim that they have rights under the Peterson patent, and that they are lawfully engaged in the making, selling and leasing exhibitors under their patent, and that the defendants are publishing false and malicious libels concerning the plaintiff's business and their business character and transactions. This the State courts have the right and jurisdiction to restrain. Snow v. Judson, 38 Barb. 210; Thorley v. Massam, a case in the English Chan. Div., and published in 21 Alb. L. J. 171.

The circulars issued and distributed among the parties dealing with the plaintiffs go beyond making a claim, that plaintiffs are infringing upon the rights of the defendants, and giving notice of such infringement and its legal consequences. They substantially charge that plaintiffs are prosecuting a business which is an unlawful interference with the defendant's rights, and are irresponsible, and hoping to make something out of it before legal proceedings stop them, and that their efforts in that direction are nefarious. This language is quite too excessive and ill chosen to convey simple information, that plaintiffs and their patrons have no right to make and sell carpet exhibitors and are liable to the defendants for doing so. all events I think it quite safe to hold that such language is satisfactory evidence of malice, until the defendants commence an action in good faith against the plaintiffs or o her parties, to vindicate the rights which the defendants claim.


Motion to restrain the publications complained of granted, with ten dollars costs of motion.





The by-laws of a corporation provided that a transfer of its stock should be made in writing, and that upon the presentation of such transfer with the certificate to the secretary, a new certificate should be issued to the assignee, and the certificates of stock contained a provision to the like effect. B., the owner of stock, transferred the same with the certificate to F., from whom plaintiff received a transfer with the certificate for value. B. subsequently transferred the stock for value to M., but without the certificate. The corporation issued a new certificate of the stock to M. Held, that the corporation was liable to plaintiff for the value of the stock, even though the record in the books of the company showed title to the stock in M. at the time plaintiff purchased the certificate.

The records of the corporation were not constructive notice to persons dealing in its stock.


CTION for damages by reason of the wrongful issue of a certificate of stock. The facts appear in the opinion.

BONNER, J. This case is one of first impression in this court, and we have endeavored to give it that full consideration in the light of authority, consistently with the pressure of other business, which its importance demands.

It involves the question of the liability of a railroad company for damages for having issued new shares of stock to one claiming under the first shareholder, when the original certificate is still outstanding in the hands of an innocent third party, but who had not presented the same, with his transfer, to the office of the company, previously to the issuance of the new stock.

To determine the liability of the company to some extent necessarily involves the merits of the respective titles of the two claimants, though but one is before the court.

The original certificate of stock issued on April 1, 1861, to J. M. Browder, reads as follows: "Houston & Texas Central R. R. Co., No. 19. Four shares. This certifies that J. M. Browder is proprietor of share No. 917, in the capital stock of the Houston & Texas Central Railway Company, established by Acts of Incorporation passed by the Legislature of the State of Texas, subject to which, and the by-laws, this certificate is transferable by assignment, and upon surrender hereof to the directors, a new certificate of proprietorship of said share will be delivered to the assignee."

Plaintiff, Strange, holds possession of this original certificate for a valuable consideration under the following chain of title: (1) A transfer from J. M. Browder, the original grantee, to E. S. Fletcher, dated March 14, 1862. (2) A transfer from E. S. Fletcher to J. R. Coryell, dated May 10, 1873. (3) A transfer from J. R. Coryell to plaintiff, B. A. Strange, dated August 29, 1873.

The title under which Hutchins holds the new stock is as follows: Browder sold and transferred said certificate of stock on May 6, 1868, for valuable consideration to H. C. Merriman.

In pursuance of said assignment from Browder, Merriman transferred the stock on the books of defendant's company to A. S. Richardson, and certificate of stock was issued to Richardson on July 27, 1868, and afterward Richardson transferred the stock to W. J. Hutchins, on or about January 14, 1871. The certificate to Richardson was surrendered and a new certificate

for the same stock was delivered to Hutchins, who holds and represents the stock in defendant's company.

The by-law of the company, authorized by its charter, upon the subject of the transfer of stock, reads:

"Sec. 4. The transfers of any share may be made by an instrument in writing signed by the owner, which writing may be indorsed on the certificate, or made on a separate paper. The assignee must cause his transfer to be presented and delivered to the secretary of the company before it will entitle him to be recognized as the owner, and upon presentation of such transfer, with tl certificate of stock, the secretary shall record the same in books to be kept for that purpose, and called "Report Transfers," and the president and secretary shall issue new certificate or certificates to the assignee as he may be entitled, unless they have notice of fraud or invalidity of said transfer."

Subsequently to the issue of the new stock to Hutchins a demand was made to the company by the plaintiff, Strange, for the issuance of stock to him, he having presented the original certificate with the transfer to himself, which demand was refused. On the trial below a jury was waived and judgment rendered by the court for the defendant.

From the above statement it will be seen that the original certificate of stock was transferable by assignment, either indorsed on the certificate itself or on a separate piece of paper, and was not required to be made, as in some cases, on the books of the company.

By the terms of the certificate and by-law there was a continual affirmation made by the company that they would hold, for the use and benefit of the rightful owner of the certificate, the amount of stock therein specified until it was presented at the office of the company for cancellation and new stock issued; and the company was estopped from denying this. Holbrook v. Zinc Co., 57 N. Y. 616; In re B. & San F. R. R. Co., E. L. R. 32 B. 584.

The company is, to a certain extent, the custodian of the rights of the stockholders, and is responsible for an illegal issuance of stock to their prejudice. Bayard v. Bank, 52 Penn. St. 234; Lowery v. Bank of Baltimore, Taney's C. C. R. 310; Bank v. Lanier, 11 Wall. 369; Salisbury Mills v. Townsend, 109 Mass. 121; Pratt v. Taunton Copper Co., 123 id. 110; Loring v. Salisbury Mills, 125 id. 150; Bridgeport Bank v. R. R. Co., 30 Conn. 231; New York & C. R. Co. v. Schuyler, 34 N. Y. 30.

It is not intended by this, however, to prescribe an arbitrary rule that the company shall, in any event, without being in default, as by negligence or fraud, be liable for the issuance of the stock to any other party than the holder of the certificate, but that it takes the risk, if issued without due precaution, that the certificate may be presented by some one having the superior title.

The non-production of the original certificate of stock was notice to the company that such superior title might be in a third party. New York, etc., R. R. Co. v. Schuyler, 34 N. Y. 81; Bayard v. Bank, 52 Penn. St. 235.

A provision for the record of the transfers of certificates, to be made upon the books of the company, as required by the act of December 19, 1857 (P. D., art. 4909), was intended for the benefit of the company, so that it might know, by ready reference, who were legal shareholders, who were entitled to vote at its meetings, receive dividends, etc., and to whom it could safely issue new stock. Bank v. Kartright, 22 Wend. 362; Broadway Bank v. McElrath, 2 Beas. (N. J.) 36.

Although the certificate was not the share of stock itself, it was what the company constituted the visible representation of it; and as between the shareholder and his assignee, the equitable, if not the legal title to

the stock, would pass by a transfer of the certificate, aud this without it being recorded on the books of the company. Angell and Ames on Corp., § 353-4; id. 564; New York, etc., R. R. Co. v. Schuyler, 34 N. Y. 30; McNeil v. Bank, 46 id. 331; Leitch v. Wells, 48 id. 592; Bank v. Kortright, 22 Wend. 362; Turnpike Co. v. Ferree, 2 C. E. Green (17 N. J.) 118; Bank v. McElrath, 2 Beas. (13 N. J.) 24.

Such certificate and transfer is prima facie sufficient to authorize the holder to demand of the company the privileges and benefits to which the original holder would be entitled.

This construction of the legal effect of a certificate of stock and its transfer is now required, almost as a matter of necessity, both for the benefit of corporations and of trade, since stocks in incorporated companies have become such an important basis for speculation and collateral security. To hold otherwise would virtually withdraw such stocks from all other than the home market.

Thus it will be seen that the rights of a bona fide holder of a certificate of stock are two-fold in their character. As against the shareholder he would, whether his transfer be recorded on the books of the company or not, have a good title; as against the company, to enable him to demand that he be recognized as a shareholder and entitled to his rights and privileges, he should present his certificate and transfer for record in the office of the company. New York, etc., R. R. Co. v. Schuyler, 34 N. Y. 80.

There is a class of cases in which it is held that shares of stock cannot be assigned simply by delivery and transfer of the certificate, unless made on the books of the company, so as to defeat the rights of an attachment or execution creditor without notice by levy at the office of the company.

These cases generally turn upon some particulr provision of the charter or upon some statute providing for such levy.

In the absence of some such positive provision, which would make a transfer on the books of the company an essential condition, as between the shareholder and his assignee, to pass title as against such creditor it is believed that by reason of the policy which favors the unrestrained transfer of shares of stock, the interest of the creditor should be subordinate to that of such bona fide assignee; and particularly as otherwise such assignee would virtually be without remedy if the company could protect itself under the levy and sale. Broadway Bank v. McElrath, 2 Beas. (N. J.) 24.

Browder, the original shareholder, testified that he placed his certificate of stock with a blank transfer, executed by him thereon, into the hands of Fletcher for the purpose of effecting a sale. Having thus given to Fletcher possession of the original certificate with the external indicia of ownership and the right of disposal, Fletcher's subsequent sale of it, under which plaintiff, Strange, claims, clothed him with the apparent legal title. The rights of Strange, if bona fide, do not depend upon the actual title or authority of Fletcher to sell, but upon the act of Browder giving the apparent authority and which would estop him and his assignee. Salters v. Everett, 20 Wend. 278; MeNeil v. National Bank, 46 N. Y. 325; Bridgeport Bank v. R. R. Co., 30 Conn. 231; Turnpike Co. v. Ferree, 2 C. E. Green (N. J.) 117; Holbrook v. Zinc Co., 57 N. Y. 617.

The title of Strange, however, was subject to be defeated by a superior title in Browder or his assignee, if it could be shown that Strange purchased either with notice of it or without paying a valuable consideration therefor. It is uncontradicted, both that Strange was a purchaser for value and without actual notice, and it remains to inquire whether he can be charged with constructive notice.

So far as it appears, either from any public statute or

the charter or any authorized by-law of the company, the books of the company are not made to operate as notice of ownership further than for the use and benefit of the company itself. As held by Chief Justice Taney in Lowery v. Bank of Baltimore, a purchaser of stock is not bound to look beyond the certificate or to examine the books of the corporation to ascertain the validity of a transfer, as a different rule would greatly impair the value of stock and would seriously disturb the usages of trade and the established order of business. Taney's C. C. R. 310; Salisbury Mills v. Townsend, 109 Mass. 115. Hence these records are not constructive notice to third parties dealing in certificates of stock, and were not such notice to Strange. On the contrary, it may be said that the company, by the terms of the certificate to Browder and of their own by-law, were, by the non-production of this certificate at the time they issued the new stock to Richardson, who seems to have been its secretary, charged with notice that the original certificate was outstanding and may have then already passed or might subsequently pass into the hands of an innocent holder for value. This, we think, was under the evidence in this case such a dereliction of duty on the part of the company, and such breach of their contract as contained in the certificate which they had permitted to be thrown upon the market, and to which they had invited confidence, as to make the company responsible to Strange, who held the possession of it by the older title for a valuable consideration and without notice of any defect.

We are of opinion that under the law, as applied to the evidence, there was error in the judgment for which it should be reversed and the cause remanded.



PUBLIC POLICY — CONSTRUCTIVE POSSESSION PENDENT ON CONTRACT VOID BY - DEALINGS BY CITIZEN WITH PUBLIC ENEMY TROVER FEDERAL QUESTION.- Plaintiff claimed the right of possession of certain cotton which was in defendant's hands. The right of plaintiff came thus: By virtue of a contract made between plaintiff, then a citizen of the United States, and the Confederate power, then at war with the United States, this cotton was to be delivered to plaintiff in consideration of goods contraband of war, furnished by him to the Confederate power. This cotton was set apart by the Confederate authorities for plaintiff and plaintiff's mark put upon it at San Antonio, Texas, by his agent, but he never had actual possession of it there. It was while there and after it left there still in the actual care, control and custody of the Confederate power, though a bill of lading thereof was delivered to plaintiff. Defendant obtained the cotton from one who obtained it from Confederate military officers in whose possession it was. Held, that plaintiff could not show a constructive possession of the cotton except by establishing the contract by which he obtained title, and that contract being invalid, plaintiff could not maintain trover against defendants for such cotton. The contract by which plaintiff became entitled to the cotton was one grossly against public policy and void. Judicial aid will not be given to enforce such a contract nor to maintain a claim that rests solely npon it. The proof of the contract and that the cotton sued for was the subject-matter thereof does not make out a right to take immediate possession of the property, for the contract is void and of itself gives no right that the law will recognize. A claim that the contract was executed will not aid plaintiff, although there are cases where it is indicated that rights may arise from a contract void as against public policy, where the contract has been carried out by the parties. Robinson v. Int.

Life Ins. Co., 42 N. Y. 54. In Woodworth v. Bennett, 43 N. Y. 273, it is recognized that if an illegal and void contract be so fully executed as that a demand connected with it is capable of being enforced at law without aid from the illegal transaction, the claim will be sustained, citing Chitty on Cont., 657; Tenant v. Elliott, 1 B. & P. 3; Merritt v. Millard, 4 Keyes, 208. But here plaintiff never had such a right or interest in the property as that without proof of the contract he could have shown himself entitled to have immediate possession of it. Cases also cited, Montgomery v. United States, 15 Wall. 395; Spratt v. United States, 20 id. 459; Whitfield v. United States, 92 U. S. 165; Disman v. United States, 93 id. 605. The question in this case is not a Federal one, and this court is not bound to follow United States Supreme Court decisions when by so doing it departs from what is recognized as law in this State. Judgment affirmed. Clements, appellant, v. Yturria. Opinion by Folger, C. J. [Decided June 1, 1880.]

WILL-CONSTRUCTION OF GIFT TO A AND THE CHILDREN OF B-WHEN DONEES TAKE PER STIRPEINTENTION. Testator had five children, Irene, Isabella, Anita, Joseph and Henry. Irene died leaving five children; Isabella died leaving one child. His will made these bequests: "To my daughter Anita, $50,000" during life, with the power of giving at death, by will, the principal "to her husband or the children of Irene. "To the children of Irene, $50,000." "To Henry, $25,000." "To Joseph, $5." The testator then provided that if there should be a remainder, "I wish the same to be divided equally between Anita, the children of Irene, the son of Isabella, and Henry." Held, that the testator showed an intention that the children of Irene should take as a class and not as individuals, and that the residuary fund should be divided per stirpe and not per capita, among those named. In 2 Powell on Devises, 331, it is said that where a gift is made to a person described as standing in a certain relation to the testator and to the children of another person standing in the same relation, as "to my brother A and the children of my brother B," A only takes a share equal to one of the children of B, and this position is abundantly sustained by authority of English cases (Bluckler v. Webb, 2 P. Wms. 383; Dowding v. Smith, 3 Beav. 541; Lender v. Blackmore, 1 Sim. 626), and to some extent by the courts of this country. But the rule referred to has, in modern times, been applied with reluctance, by some courts because it has become a rule of property, and by others out of deference to its supposed authority, but in many, if not in all cases, with open protest; while by others it has been wholly rejected. Minter's Appeal, 40 Penn. St. 111; Raymond v. Hillhouse (Conn.), 19 Alb. L. J. 522. Wherever the rule is adopted it is also held that it is to be governed by the context, and as is said, will yield to a very faint glimpse of a different intention. 2 Jarm. on Wills (1st Am. ed.), 112; Clark v. Lynch, 46 Barb. 69; Collins v. Hoxie, 9 Paige, 81; Brett v. Horton, 5 Jurist, 696; Roper on Legacies, 159; Lockhart v. Lockhart, 3 Jones' Eq. (N. C.) 205; Balcom v. Haynes, 96 Mass. 204. Here the intention is clear to give to the children of Irene as a class. This construction also assimilates with the provisions of the statute of distributions, and accords with the general justice of the law. Judgment affirmed. Ferrer et al., appellants, v. Pyne et al. Opinion by Danforth, J. [Decided June 1, 1880.]

USURY-WILL NOT BE IMPLIED WHERE NO AGREEMENT THEREFOR EXISTS-COMMISSIONS.-G. was indebted to S. in the sum of $172.45 on two notes which had been placed in the hands of R., an attorney, for collection. An arrangement was made between G. and S. for a loan by the latter to the former of $1,500 on bond and mortgage. Nothing was said or agreed

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gage were executed and delivered by G. at the office of R., without words or parley. A statement was there made out showing the amount due on the notes, $172, and an attorney's bill made by R. to G. in items, amounting to $230.45, receipted by R. and with a check for $1,097.10, drawn by S., was handed to G. as covering the $1,500. One item in the bill of R., to wit: "Commissions for obtaining loan $150," was objected to by G. S. told him it was all right, it was cheap enough, he could not do any better." Held, that even if the $150 retained as commissions was never paid by S. to R. there was no usury in the contract. Under the agreement for a loan G. was entitled to the whole $1,500 and if S. wrongfully retained $150, under a false pretense, an action would lie by G. against him for that sum. There was no intent on the part of G. to pay usury; no expectation on his part that S. should have usury. If the attorney without right, or S. by false pretense, deprived G. of the money due to him, it was by virtue of no agreement and so there could be no usury. You may sometimes, it is said, waive a tort and imply an agreement, but from a fraud you cannot imply or import a term into a valid agreement for the purpose of rendering that agreement void. Judgment reversed and new trial granted. Guggenheimer, appellant, v. Geiszler et al. Opinion by Danforth, J. [Decided June 1, 1880.]



AMENDED ANSWER-SHAM AND FRIVOLOUS.-The right to serve an amended answer within twenty days after service of the original answer, is an absolute one. And the defendant alone is, in the first instance, but subject to the judgment of the court, to decide what the amended answer shall be. Plaintiff has no more right to decide that it contains no substantial amendment, and therefore to reject and disregard it, than he has to decide that the original answer is a mere sham, or frivolous and therefore to disregard it and enter judgment. Griffin v. Cohen, 8 How. 453; Burrall v. Moore, 5 Duer, 654; Rogers v. Rathbun, 8 How. 466; Strout v. Curran, 7 id. 36. But if the amended answer is served immediately before the time fixed for the trial, and it is manifest that the amendments are immaterial and merely colorable, and that it is resorted to only as a device to put the cause over the trial term, plaintiff may disregard it and proceed to trial. Vanderbilt v. Bleeker, 4 Abb. 289. A verified answer cannot be stricken out as sham or false. Wayland v. Tysen, 45 N. Y. 281; Thompson v. Erie R. Co., id. 468. The Code (§ 537) allows a pleading to be stricken out as frivolous only where it is wholly frivolous and a final judgment can be given upon it. Where a part of an answer is held good, and there are issues remaining to be tried, no part of the answer can be stricken out as frivolous. Fettretch v. McKay, 47 N. Y. 426; Strong v. Sproul, 53 id. 497. Becker v. Weisner. Opinion by James M. Smith, J.

ATTORNEY MAY BE SURETY ON APPEAL FROM JUSTICE COURT.-Rule 5 of the general rules of practice, providing that in no case shall an attorney be surety on any undertaking or bond required by law, or by the rules, or by any order of a court or judge, in any action or proceeding, does not apply to justices' courts, and therefore an undertaking given to the justice on appeal for a new trial is regular and valid, though the surety is an attorney. Lawler v. Van Aernam. Opinion by Beckwith, J.

EJECTMENT EXECUTION OF WRIT LAND LYING BETWEEN HOUSES IN CLOSE PROXIMITY. - Plaintiff recovered a judgment in ejectment against defendant

for the possession of a small piece of land, upon and over which the wall of defendant's house stood and projected about two inches. Plaintiff's house stood so close to defendant's house that it was impossible to go between them and remove or cut off the wall; but the sheriff cut off the portion of the foundation wall not between the buildings, and made return that he delivered possession of the property to plaintiff, as commanded in the writ. Held, that the sheriff had done all that was in his power to deliver possession of the property, and the return was true. See 3 Bl. Com. 412; Adams' Eject., by Tillinghast, 342; Jackson v. Haviland, 13 Johns. 229; 5 Little (Ky.) 187. The sheriff would not be justified in entering defendant's cellar for the purpose of removing the projecting wall so that it should not extend over the line. See Curtiss v. Hubbard, 4 Hill, 437. It being physically impossible for the sheriff to take actual possession lawfully, he was excused from making any further delivery. Plaintiff, by building his house so close to defendants, obstructed and prevented the sheriff from cutting or removing the wall. In a similar case the court declined to instruct the sheriff as to how he should execute the writ. Falvey v. Elliott. Opinion by Beckwith, J. INJUNCTION — STREET RAILROADS.—A preliminary injunction will be granted to restrain a street railroad company from running its cars upon rails laid in the street without making compensation to the owners of the fee, or taking proceedings under the statute to acquire the same. And an injunction will not be refused merely because the defendant laid its tracks in good faith, supposing it was with the plaintiff's assent, and the city had commenced proceedings to acquire the fee, and the defendant offers to give security to take proceedings forthwith to acquire the fee and pay for the same, in case it should be ultimately decided that it has not the right to occupy the street. Payment to the owner for the interest in his lands appropriated for the use of the railroad is a condition precedent to lawful occupancy. Blodgett v. Utica & Black River R. Co., 64 Barb. 580; Sixth Ave. R. Co. v. Kerr, 72 N. Y. 333. But an entry by a railroad company under peculiar circumstances of disputed right or mistake will not be interfered with where it offers to give security to make compensation forthwith to the owner of the lands taken. Plaintiff was not bound, though aware that defendant was constructing its tracks, to demand compensation, or make any protest against the work. Christiansen v. Sinaford, 19 Abb. 223; Meriam v. Boston, 117 Mass. 241. The violation of a man's right of property is an injury, and where the right is clear the minuteness of his damages will not be considered. Ellicottville Plankroad Co. v. Buffalo, etc., R. Co., 20 Barb. 644; Clinton v. Myers, 46 N. Y. 511. A parol license given by the owner of land to a railroad company to occupy the land for its road, though followed by the expenditure of money in the construction of the road, is revocable. Murdock v. Prospect Park, etc., R. Co., 73 N. Y. 579. Buffalo City Cemetery v. Buffalo East Side Street R. Co. Opinion by Beckwith, J.

NEGOTIABLE PAPER-HOLDER FOR VALUE-INDORSEMENT.- Plaintiff delivered to S. a horse, under an agreement that the title should pass when he delivered to plaintiff his note for the price, indorsed by defendant. S. made out his note payable to "Wm. Connor," that being the name both of defendant and his father-indorsed it, presented it to plaintiff and informed him that the indorsement was made by demanding defendant's indorsement. defendant's father, but plaintiff refused to receive it,

They then called upon defendant, and S., in plaintiff's presence, informed defendant of the sale of the horse, etc., and also told him that the indorsement was made by his father. Defendant, upon the faith of this representa

tion, thereupon indorsed the note. Held, (1) that the plaintiff parted with value on the faith of the indorsement. Russell v. Minor, 22 Wend. 659; Leven v. Smith, 1 Denio, 571. (2) That he was not affected by the false representations. It was defendant's duty to ascertain whether the indorsement was genuine. He relied on that; plaintiff did not, but relied on defendant's indorsement. Each indorser warrants, in law, to his indorser, that the antecedent signatures are genuine, though he may have indorsed for accommodation. Coggill v. Am. Exch. Bank, 1 Comst. 113. Monnen v. Conner. Opinion by James M. Smith, J.

REMOVAL OF CAUSES TO Federal courts. The averment in a petition for the removal of a cause to the Federal court as to the citizenship of the parties, cannot be controverted. Osgood v. Chicago R. Co., 6 Biss. 330, approved. See, also, articles on removal of causes by Judge Dillon and R. McP. Smith, in 2 So. Law Rev. 282; 3 id. 227. Clark v. Opdyke, 10 Hun, 383; De Camp v. N. J. Mut. Ins. Co., 2 Sweeny, 481; Orosco v. Guzleardo, 22 Cal. 83; Goddard v. Bosson, Sup. Ct. Kans., 18 Alb. L. J. 512, and articles by Chancellor Cooper in 3 So. L. Rev. 3, dissented from. Dickey v. Robbins. Opinion by Beckwith, J.


CONTRABAND LAW-BUSINESS PRIVATI AND PUBLICI JURIS. — A business privati juris cannot be declared by the courts publici juris, and this principle is not affected by the circumstance that it is carried on by a 'corporation. The business of warehousing and compressing cotton is privati juris. It will not, in the absence of legislation, become publici juris by reason of its extent. The business is free to every one who wishes to engage in it. No grant or franchise need be obtained from the State to authorize those desiring to

do so to embark in this character of business. It is not one of the employments which the common law declares public. Coggs v. Barnard, 2 Ld. Raym. 99; 2 Parsons on Cont. 139; Story on Bail., § 442. Ladd v. Southern Cotton Press & Manufacturing Co. Opinion by Moore, C. J.

[Decided March 26, 1880.]

CONSTITUTIONAL LAW-EMINENT DOMAIN-RAILWAY TRACK IN HIGHWAY. -In a case where it was claimed by the owner of lots abutting on a street the fee of which street was in the State, that he was entitled to compensation for the use of the street by a railroad company, held, that the use of a street for a railroad is not ordinarily inconsistent with its continued use for the common purposes of a street. The authorities are numerous and conclusive, that such an addition to the use of a street, the fee being in the public, if authorized by the Legislature, gives the lotowner no right to compensation, although his easement in the street be thereby partially impaired and his lots rendered less valuable. The regulation or enlargement of the use of the street, the property of the State, by the Legislature, is not a taking of property within the meaning of the constitutional provision in respect thereto, although the lot owner may thereby suffer incidental or consequential inconvenience or injury. Kellinger v. Forty-Second St. R. Co., 50 N. Y. 208; People v. Kerr, 27 id. 188; 37 id. 357; Hatch v. Vermont Cent. R. Co., 28 Vt. 142; N. Y. & Elm. R. Co. v. Young, 33 Penn. St. 180; Shearman & Redf. on Neg., § 370; 2 Dill. on Munic. Corp., § 564; Cooley on Const. Lim. 542 et seq.; 1 Thomp. on Neg. 358; Wood on Nuis., §§ 753, 755. Houston & Texas Central Railroad Co. v. Odom. Opinion by Gould, J. [Decided May 18, 1880.]


NEGOTIABLE INSTRUMENT-PRESENTMENT AND NOTICE BY A DISQUALIFIED NOTARY — EVIDENCE — PROTEST OF PROMISSORY NOTE UNNECESSARY.-When in an action against an indorser upon a promissory note it was shown that the notary who presented and protested the note was disqualified from holding the office of notary, held, that he was authorized as an individual to present the note for payment and give the proper notice, and the fact that he had done so could be shown by his testimony as a witness. Whether the notary was competent to act as a notary or not, he was certainly not incompetent as a witness. A notarial protest of a promissory note is not necessary. It is only important as prima facie evidence of demand on the maker, and notice to the indorsers. Here the note was duly presented for payment at the banking house where it was made payable on its face, and payment refused. The notary testified that he had given the defendant notice of non-payment on the day of protest, and that subsequently the defendant admitted its receipt. This was better evidence than the certificate of the same notary under his official seal. Pennsylvania Supreme Court, March 29, 1880. Falk v. Lee. Opinion by the Court.

NEGOTIABLE INSTRUMENT-WHAT IS STIPULATION IN PROMISSORY NOTE-NOTICE. — In a note otherwise negotiable, and containing a promise to pay interest at twelve per cent after maturity, was this stipulation: "If this note is not paid at maturity, the same shall bear twelve per cent interest from date." Held, that these stipulations were tantamount to a promise to pay interest from date until paid, at twelve per cent, with a proviso that if promptly paid at maturity no interest would be exacted; that they did not destroy the negotiability of the paper, nor impart notice to a bona fide purchaser for value before maturity, of usury in the inception of the note. The words mentioned do not leave uncertain either the fact, the time, or the amount of payment. Indeed, up to and including the maturity of the notes, they are entirely without force. They become operative only after the notes are dishonored and have ceased to be negotiable, and then there is no uncertainty in the manner or extent of their operation. They create, as it were, a penalty for non-payment at maturity, and a penalty the amount of which is definite, certain and fixed. In this respect, they are even less objectionable than the stipulation concerning attorney fees, which was considered in the case of Seaton v. Scovill, 18 Kans. 433, for there the amount was not fixed and named, but the stipulation was for reasonable attorney fees. See, also, 1 Daniel on Neg. Insts., §§ 53, 54, 61, 62; Tholen v. Duffy, 7 Kans. 410; Gould v. Bishop Hill Co., 35 Ill. 325. Kansas Supreme Court, January Term, 1880. Parker v. Plymell. Opinion by Brewer, J.



ITS. A savings bank, under a special charter, was authorized to receive and invest deposits for the benefit of the depositors, the income or profit to be divided among them, after reasonable deductions for necessary expenses, the principal to be repaid to the depositors at such times and with such interest and under such regulations as the board of managers should from time to time prescribe. Under their regulations they not only received deposits participating in the profits and not payable except on thirty days' notice, but also another kind of deposits (called by them "special deposits ") which were not to participate in the profits, and were to be repaid (not redelivered) to the depositors, without any preliminary notice. Both kinds of deposits were intermingled in the funds of the bank,

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