Gambar halaman

contract, with absolute right in the plaintiff to judi- was asked to charge “that the mere possession by the cial process for collection, would be shocking to every prisoner is not of itself sufficient to justify his conman's sense of justice. The argument is that the viction.” The court answered, “taken in connection judgment shall stand, for the plaintiff need only show with the other evidence, I believe it is." Held, that the note, and the defendant, as actor, will not be heard it could not be claimed that the court expressed an alleging his own and the plaintiff's turpitude in an ap- emphatic opinion of the prisoner's guilt, and thereby plication for opening the judgment. In one sense the substantially directed a conviction as a matter of law, plaintiff is an actor; he caused confession of judgment when the judge had, before this request was made, on the void instrument, and uses the process of the fairly presented all the questions of fact and left to law to collect the money agreed to be paid for its the jury to determine from the whole evidence the violation.

guilt or innocence of the accused. The province of The reason of the rule which allows a defendant to the jury was in no manner involved. The ruling, plead and provo the illegality of a contract in bar of a taken in connection with the rest of the charge, was suit upon it demands that he be heard on an applica- in substance that tho question of the guilt or innotion to open a judgment so confessed. His rights are cence of the accused was wholly for the jury, but if of secondary importance, and he is not heard for their they should find him guilty, the evidence was legally vindication. It is the duty of the court, on proper sufficient to sustain the verdict. This comes within showing, to open such a judgment, to the end that there the rule in Stover v. People, 56 N. Y. 318, where it is may be a trial as if suit had been originally commenced said, that “in many cases judges have instructed juries on the note, or otber obligation, on which the judg- that such proof was sufficient to convict. This is corment was entered. In this way the law may be vindi- rect, with the addition that if it couvinced them of cated, and the interests of the Commonwealth con- the guilt of the party, which would ordinarily be imserved.

plied from the direction." Judgment affirmed. Henze, The order and decree, discharging the rule to show pluintiff in error, v. People of New York. Opinion by cause why judgment should not be opened, reversed, Finch, J. and now the said rule is made absolute; the record to [Decided Oct. 5, 1880.] be remitted for further proceeding. Appellees to pay

MASTER AND costs of this appeal.


CONSTITUTE.-In an action by one who had been emNEW YORK COURT OF APPEALS ABSTRACT.

ployed as locomotive engineer by a railway company

against such company, for injury by the overturning COUNTER-CLAIM - ARISING OUT OF SAME TRANSAC- of an engive he was running, caused by the defective TION ALLOWABLE, THOUGH NOT EXISTING WHEN AC- condition of defendant's road, it was claimed by deTION COMMENCED. A claim for overpayment upon a fendant that plaintiff knew of the dangerous condicontract upon which an action was brought, held to be tion of the road when he run the engine, and was permissible as a counter-claim, to be set up by an therefore negligent. It appeared that while plaintiff ameuded or supplemental answer, whether it was a knew that the road was somewhat out of repair, it did fact occurring after the first answer was put in or was not appear conclusively that he knew how badly it one of which the defendant's attorney was ignorant was out of repair, or that the danger was imminent or when he made the first pleading. It was a claim that very great. Three or four passenger trains besides arose out of the contract or transaction set forth in freight trains passed over the road each way daily, and the complaint and was also connected with the subject no other accident was shown to havo happened from of the action. It fell within the first subdivision of the badness of the road. Plaintiff and other engineers old (ode, section 150; it was not obnoxious to the con- had frequently run over the road with safety in the dition stated in subdivision 2 that it must exist at the same way that he ran at the time of the accident. At commencement of the action. And defendant would that time he was by special order running his engine be entitled to prove and have judgment for the amount at the rate of twenty miles an hour without cars overpaid. The case of Ashley v. Marshall, 29 N. Y. attached in front of a passenger train. Held, that the 494, is, as far as it goes, in accord with this view. The question as to whether plaintiff was guilty of contribcase of Van Valen v. Lapham, 13 How. Pr. 240, does utory negligence was for the jury, and a nonsuit was not conflict, the construction thero being under sub- not proper. In such a case the court must take into division 2. Order of General Term reversed and account a plaintiff's position. His business was that of judgment upon report of referee affirmed. Howard v. an engineer, and unless he obeyed orders and ran his Johnston, appellant. Opinion by Folger, C. J.

engine he would have been obliged to abandon the de[Decided Oct. 5, 1880.)

feudant's service. Of one thus situated the law should CRIMINAL LAW – EVIDENCE --

not be too exacting. The court must assume that the


officers of defendant who had charge of the road and Defendant was indicted for grand larceny in having

must have known its condition deemed it safe, and stolen goods from R., by whom he bad been employed,

plaintiff had the right to rely somewhat upon their and for receiving stolen goods knowing them to havo

judgment. It would be a very unjust rule which would been stolen. It was shown that when leaving the

allow a master to shield himself from responsibility store of R. he was stopped and searched and a small

for the consequence of his own negligence, by alleging amount of goods found on him. Some $200 worth of

those acts, not inevitably or imminently dangerous, to goods were found upon searching his barn the next

have been negligent, which his servant performed by day, but the evidence of ownership was so uncertain

his express orders. Patterson v. Pittsburg, etc., R. that the district attorney abandoned the prosecution

Co., 76 Penn. St. 389. Judgment affirmed. Hawley as to them and a conviction was had for petit larceny.

y. Northern Central Ruilway Co., appellant. Opinion At the trial a question was asked of a witness who

by Earl, J. aided in the search of prisoner's house, “What did

[Decided Oct. 15, 1880.] you find there?Ireld, that the allowance of this TAXATION - OF CORPORATION MUST BE AT PRINCIquestion was not error, on the ground that it was proof PAL OFFICE AS SET FORTH IN ITS CERTIFICATE OF INof a separate offense. The evidence was admissible as CORPORATION tending to prove the charge of grand larceny, etc.; BY CERTIORARI.-(1) Plaintiff, a corporation organthat it failed of its purpose did not make it incompe- ized under the “ Act for the incorporation of companies tent. (2) At the couclusion of the evidence the court formed to navigate the lakes and rivers,” passed April


15, 1854, filed in the proper offices the required certifi- ent of and separate from the original suit, it cannot be cate of incorporation, in and by which, as directed by re-examined here either by writ of error or appeal. the act, it certified and declared that “the name of the This was decided more than fifty years ago iu Keartown and county in which the principal oflice for ney's case, 7 Wheat. 39, and the rule then established managing the affairs of such companiy is to be situated, was followed as late as New Orleans v. Steamship Co., is the town of Clarkstown, in the county of Rockland, 20 Wall. 392. In error to United States Circuit Court, in the State of New York." It was always assessed, S. D. New York, motion to dismiss writ granted. when assessed for taxation, in the county named, and Ilayes, plaintiff in error, v. Fischer. Opinion by paid taxes, and in the town named its annual meetings Waite, C. J. for the election of directors and the choice of officers

JURISDICTION – OF FEDERAL COURTS NOT CONFERAwere always held, sometimes in a room in the village of

BLE BY CONSENT OF PARTIES - REMOVAL OF CAUSE Nyack, sometimes in a store in Upper Nyack, and once in a railroad car. No other busiuess was transacted

FROM STATE COURT DEPENDENT UPON SUBJECT-MATthere, though a sign “The Union Steamboat Co." was

TER.- While the mere consent of parties cannot conkept up at principal office. The rest of its business

fer upon the courts of the United States the jurisdicwas mainly transacted at Buffalo. The company's

tion to hear and decide their cases, for if it could those business was transporting freight on the great lakes in

courts would become the common resort of persons

who have no right, either under the Constitution of which some twenty propellers were used whose home port was Buffalo. In that city tho managers resided

the United States por by the laws creating them, to and controlled a large and profitable business with the

litigate in them, where there are conflicting suits in reaid of numerous clerks, who kept the general accounts

lation to the same property (a railroad), one in a State of the company, received its income and paid its ex

court and the other in a Federal court, and the Fedpenses and managed its affairs very much after the

eral court has possession of tho property, the parties manner of a resident corporation. Held, that the

in the suit in the State court may by consent remove

the cause into the Federal court. That court by takcorporation was taxable in Rockland county and not iu Buffalo. Western Transportation Co. v. Scheu, 19

ing possession of the property had drawn to itself the N. Y. 408; Oswego Starch Factory v. Dolloway, 21 id.

subject matter of the litigation and the right to de419. In these cases it was held that for the purposes of

cide upon the conflicting claims to the possession and taxation, the principal office of the corporation was

control of the road. These principles are not new in fixed couclusively by the certificate of incorporation

this court. They will be found to be sustained by the and that in the county thus designated and in tbat

cases of Minnesota Co. v. St. Paul Co., 2 Wall. 609; alone a corporation could lawfully be taxed. This

Watson v. Jones, 13 ij. 715; Freeman v. Horne, 24 would not be affected by the fact that the principal

How. 450; and Buck v. Colbath, 3 Wall. 337. In conoflice of plaintiff was located in the county of Rock

senting, therefore, to the voluntary transfer of the litland to avoid taxation. (2) The assessors of Buffalo

igation from the State court into the Federal court, imposed upon plaintiff a tax which plaintiff (upon the

the parties did no more than what they could have ground that its principal oflice was located elsewhere)

been compelled to do by the injunction of the latter, opposed before the assessors, but ineffectually. The

and what would have been done by such compulsory collector of taxes levied upon one of plaintiff's steam

order if they had not submitted to it by agreement. ers to collect the tax, whereupon, to secure the release

Wiswall v. Sampson, 14 How. 52. Judgment of United of its property, plaintiff paid the tax under protest.

States Circuit Court, S. D. Illinois, affirmed. People's Held, that an action to recover back the amount paid

Bank of Belleville, plaintiff in error, v. Winslow et al. would lie against the city, and the city could not set

Opinion by Miller, J. up that the assessors, having aeted judicially, the only JURISDICTION- FEDERAL COURTS — SUITS FOR COIremedy for error on their part was certiorari. Where

LISION – FEDERAL QUESTION.- -- The single question assessors have jurisdiction, certiorari is the proper

here was whether the courts of the United States, as remedy, but this is not so where they liave no right to

courts of admiralty, have exclusive jurisdiction of suits act at all. In this case they had no jurisdiction. See

in personam, growing out of collisions between vessels National Bk. v. City of Elmira, 53 N. Y. 49. Judgment

while navigating the Ohio river. The court hold that affirmed. Union Steamboat Co. v. City of Buffalo, this is a Federal question giving it jurisdiction, but appellant. Opinion by Finch, J.

being decided as it was substantially in The Moses [Decided (ct. 15, 1880.]

Taylor, 4 Wall. 431; Hine v. Trevor, id. 571; The Bel

fast, 7 id. 612; Leon v. Garcelon, 11 id. 190; and SteamUNITED STATES SUPREME COURT AB

boat Co. v. Chase, 16 id. 531, it is not any longer open STRACT.

to argument. The Judiciary Act of 1789 (1 Stat. 76, S 9),

reproduced in section 503, Rev. Stat., paragraph 8, OCTOBER TERM, 1880.

which confers admiralty jurisdiction on the courts of

the United States, expressly saves to suitors, in all APPEAL-WHEN ORDER FOR CONTEMPT NOT REVIEW

cases, the right of a commou-law remedy, where the ABLE.- Fischer brought a suit in equity in the Circuit

common law is competent to give it. That there alCourt to restrain Hayes from usirg a certain patented device. In this suit an interlocutory injunction was

ways has been a remedy at common law for damages granted. Upon proceedings for violating this injunc- miss denied, and that to affirm granted. In error to

by collision at sea cannot be denied. Motion to distion the Circuit ('ourt ordered Hayes to pay the clerk

Pennsylvania Supreme Court. Schoonmaker et al., $1,389.99 as a fine, and that he stand committed until

plaintiffs in error, v. Gilmore. Opinion by Waite, C. J. the order was obeyed. To reverse this order Hayes sued out this writ of error, which Fischer moved to dismiss, PRACTICE

:- REHEARING AFTER JUDGMENT.— A petion the ground that such proceedings in the Circuit tion for rehearing after judgment, under the rule proCourt cannot be re-examined here. This court held that mulgated in Public Schools v. Walker, 9 Wall. 604, if the order complained of is to be treated as part of cannot be filed, except at the term in which the judge what was done in the original suit, it cannot be brought ment was rendered. In Hudson v. Guestier, 7 Cr. 1, here for review by writ of error. Errors in equity a motion was made at the February term, 1812, for a suits can only be corrected in this court on appeal, and rehearing in a case decided two years before, but the that after a final decree. This order, if part of the court said “the case could not be reheard after the proceedings in the suit, was interlocutory only. If the term in which it was decided.” At the end of the proceeding below, being for contempt, was independ- term, the parties are discharged from further atteud. ance on all causes decided, and we have no power to tional provision, without reference to the statutes of bring them back. After that, we can do no more than the State passed in fulfillment of the constitutional correct any clerical errors that may be found in the mandate. Groves v. Slaughter, 15 Pet. 449; Fusz v. record of what we have done. In Brown y. Aspden, Spaunhorst, 67 Mo. 256; Railroad v. Buchanan, 39 id. 14 How. 26, where the practice in respect to orders for 485; French v. Teschemaker, 24 Cal. 518; Gray v. rearguments was first formally announced, the rule in Coffin, 9 Cush. 192; Ericksou v. Nesmith, 15 Gray, 221; this particular was not extended, for Chief Justico Windham Prov. Inst. v. Sprague, 43 Vt. 502; Priest v. Taney was careful to say that the order for reargument Manuf. Co., 115 Mass. 380; Shaft Co. v. Evans, 72 Penn. might be made after judgment, provided it was en- St. 331; Lowry v. Inman, 46 N. Y. 119; Dauchy v. tered at the same term; and in United States v. Knight, Brown, 24 Vt. 197; Thompson on Liab. Stockh., $ 56; 1 Black. 490, the same limitation is maintained. Down Knowlton v. Ackley, 8 Cush. 93; Cambridge Waterto that time such an order could be made only on the works v. Dyeing & Bleaching Co., 4 Allen, 239; Briggs application of some member of the court-who con- v. Penniman, 1 Hopkins, 300; S. C., 8 Cow. 387; Slee curred in the judgment, and this continued until Pub- v. Bloom, 19 Johns. 456; Bank of Poughkeepsie v. Iblic Schools y. Walker, supra, when leave was given bottson, 24 Wend. 473. U. S. Circ., Massachusetts, counsel to submit a petition to tho same effect. In all Sept. 1880. Morley v. Thayer. Opinion by Clifford, (.J. other respects tho rule is now substantially the same

JURISDICTION - OF FEDERAL COURT — NEGOTIABLE as it was before this relaxation. Appeal from United

INSTRUMENT.-(1) The Circuit Courts of the United States Circuit Court, Iowa. Brooks et al., appellants, v.

States have jurisdiction, under section 1, chapter 137, of Burlington & Southwestern Railway Co. Opiniou by

the act of March 3, 1875, over a suit brought by the asWaite, C. J.

signee of a municipal bond, where such bond is in form a

simple acknowledgment of indebtedness, and an unUNITED STATES CIRCUIT AND DISTRICT conditional promise to pay a certain sum of money at COURT ABSTRACT.

a time certain. (2) The words “ bearer” or “ order”

are not essential to the negotiability of a promissory COMMON CARRIER — HAS NO RIGHT TO EXAMINE CON

note. See City of Lexington v. Butler, 14 Wall. 282, TENTS OF PARCELS INTRUSTED TO HIM.–The refusal of a

293; Brainerd v. N. Y. & H. R. Co., 25 N. Y. 496; railroad company to carry an express company's safes

Blake v. Sup’re S. Co., 61 Barb. 149; 3 Kent's Com. 77; and chests, unless it was allowed to open the same and

Story on Notes (7th ed.), SS 43 and 44; Daniels on Neg. inspect their coutents, or was furnished with an iuven

Instr., $ 1016; Klauber v. Biggersta:f, 47 Wis. 551. U. tory of such contents, with the further understanding

S. (iro. (t., W. D. Wisconsin, July, 1880. Porter v. that the railroad company might, whenever it saw fit,

City of Jonesville. Opinion by Bunn, D. J. open and inspect the safes aud chests of tho express company, and also collect the freight on each separate article or parcel contained therein, as if each had been

IOWA SUPREME COURT ABSTRACT. shipped by itself, violates both the express company's

OCTOBER, 1880. rights as a shipper, and the terms of an interlocutory judgment temporarily restraining an interference with

CORPORATION - SUBSCRIPTION the express company's business. In the Nitro Glyce

CONSTITUTES VALID SUBSCRIPTION.-Defendant subrine case, 15 Wall. 524, it was held that express carriers

scribed a statement and tho articles of incorporation were not chargeable with notice of the contents of the

of a banking corporation. The statement read thus: packages they carry. The court then remarks: “If

“We, the undersigned, having associated ourselves express carriers are thus chargeable with notice of the

together for the purpose of organizing a banking assocontents of packages carried by them, they must have

ciation, and transacting the business of banking, the right to refuse to receive packages offered for car

under chapter 52 of the revision of 1860, do declare and riage without a knowledge of their contents. It

state as follows: First, the namo and title of the assowould in that case be unreasonable to require them to ciation shall be the Farmers & Merchants' Bank of accept as conclusive, in every instance, the information

Bloomfield, Iowa; second, the authorized capital of given by the owner. They must be at liberty, when- said Farmers and Merchants' Bank of Bloomfield, ever in doubt, to require for their satisfaction an in

Iowa, shall be $150,000, which shall be divided into spection even of the contents, as a condition of carry- shares of $100 each; third, tho name and residence of ing the packages. This doctrino would be attended, in

the shareholders of this association, with the number practice, with great inconvenience, and would seldom

of shares held by each, are as follows: To this was lead to any good. Fortunately, the law is not so un

appended defendants' subscription thus, “J. W. Clayreasonable. It does not exact any such knowledge on

ton, 10 shares." Tho articles of incorporation conthe part of the carrier, nor permit him, in cases free

tained this: “Eighth. Fifty per cent of all the stock from suspicion, to require information as to the con- subscribed for this association before it commences tents of the packages offered.” In Leaf v. Tuton, 10

business shall be paid in at the time of commencing Mees. & W. 397, a number of small parcels belonging to

business, and the balance so subscribed shall be paid in different owners were united in one large package, and

at such times and in such installments as the board of directed to one person as consignee, and it was held

directors may prescribe." The directors called for full that the carrier was bound to take the package, charg

payment for the stock subscribed. Held, in an action ing for it as if each parcel belonged to one person, aud

by tho assignee of the bank to recover fifty per cent that there was no right to charge upon each separate

unpaid on the stock, that the subscription was a valid parcel as if it had been shipped by itself. U.S. Circ.,

one and defendant liable for the amount unpaid. In Indiana, June, 1880. Dinsmore v. Louisville, New Al

Spears v. Crawford, 14 Wend. 20, the writing subscribed bany & Chicago Railroad Co. Opinion by Gresham, D. J.

was in these words: “We, the subscribers, do hereby CONSTITUTIONAL LAW — EFFECT OF STATUTE LAW severally agree to take the shares by us subscribed in UPON PROVISION OF CONSTITUTION.--Section 2, art. 12, the Harlem Caual Company.” A certain number of of the Constitution of Massachusetts, provides that sbares was set opposite the name of each subscriber. dues from corporations shall be secured by individual The question presented was whether the mere agreeliability of the stockholders to an additional amount ment to take shares rendered the defendant liable to equal to the stock owned by each stockholder, and such pay for them. The court held that it did. Iu Ilartother means as shall be provided by law. Held, that ford & N. H. R. Co. v. Kennedy, 12 Conn. 505, the suit could not be maintained by virtue of this constitu- word "subscriber" was used in what was claimed to



Ilart v,


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be the subscription to stock. It was held that the sub- chester, etc., Ry. Co. v. Fullarton, 14 C. B. (N. S.) 53. scriber was liable to pay for tho stock without a

Chicago, Rock Island & Pacific Railway Co. promise to do so in so many words. The court said: Opinion by Day, J. “It is true a promise to pay in precise terms does not

REAL ESTATE — BUILDING ERECTED BY LICENSE ON appear to have been made. The defendant has not

RAILROAD, RIGHT OF WAY NOT. – S. owned a mill affixed his signature to an instrument which contains

near a railroad company's right of way. By permisthe words 'I promise to pay, but he has done an

sion of the company he erected an elevator on the equivalent act. He has contracted with the plaintiff right of way. The machinery in this he operated by to become a member of the corporation and to be in

shafting carried from this mill across lands of another terested in its stock.” In Rensselaer & W. P. Co. v.

to the elevator. Held, that the elevator was it mere Barton, 16 N. Y. 460, the court said: “ Whatever may

chattel not subject to a judgment lien and was liable be the form or language of a subscription to the stock

to be seized upon execution." A house erected by one of an incorporated company, any person who in any

man upon the land of another, by his assent, and upon manner becomes a subscriber for, or engages to take

an agreement or understanding that the builder may any portion of the stock of such company, thereby

remove it when he pleases, does not become a part of assumes to pay according to the conditions of the

the real estate, but remains a personal chattel, and charter." See, also, Small v. Herkimer Manuf., etc., Co.,

removable." 3 Wait's Act, and Def. 381. Even if 8. 2 ('omst. 335; Dayton v. Borst, 31 N. Y. 437; Hartford

had held a lease of the land upon which the building & N. II. R. Co. v. Crowell, 5 Hill, 384; W. & M. R. ('o.

was erected, and had built it for the purpose of carryv. Dwyer, 49 Iowa, 121. Nultor. v. Clayton. Opinion

ing on his business therein, he would have had the by Adams, C. J.

right of removal; and in such case it has been held NEGLIGENCE

that the building would have been personal property - ENGINE ON RAILWAY NEAR

during his term of lease, and liable to be levied upon WAY MAKING NOISE WITHOUT NOTICE - QUESTION OF FACT.-While plaintiff was approaching defendants'

and sold as personal property for his debts. Heffner railway crossing on the highway with his horses, an

v. Lewis, 73 Penn. St. 302; Lemor v. Miles, 4 Watts, engine which stood still, without notice made a noise

330; Amos & Ferr. on Fix., 250; 3 Wait's Act, and

Def. 391. caused by blowing off steam and ringing a bell, pre

Walton v. Wray. Opinion by Rothrock, J. paratory to backing, whereby the horses were frightened and overturned plaintiff's wagon, injuring him.

GEORGIA SUPREME COURT ABSTRACT. In an action for such injury, held, that whether defend

OCTOBER 12, 1880. ant was under obligation to notify plaintiff of the intended noise and movement was a question of fact to

DEBTOR AND CREDITOR - DUTY OF CREDITOR AS ro be determined from all the surrounding circumstances.

COLLATERAL SECURITY. - (1) One who receives collatIf the noise and movement were likely to be attended

eral security is bound to the use of reasonable diligence with danger to plaintiff, then it was the duty of defend

in comection therewith. If the collateral be promisant to exercise reasonable and ordinary care to prevent

sory notes or like evidences of debt, he is bound to uso injury; and if the exercise of such reasonable and

ordinary diligence to collect them. But where stock, ordinary care, under the circumstances, would require

worth about par, was deposited as collateral security, notice in some manner to plaintiff, then it was the duty

the creditor was not compelled, on failure of the of defendant, as a matter of law, to give such notice.

debtor to pay the debt, to sell the collateral; although The true doctrine upon this subject is stated in Penn.

he had the option to do so, in the manner provided by R. Co. v. Barnet, 59 Penn. St. 259. There the plaintiff

the Code, section 2140. His not selling, although he was driving over a bridge which crossed the defend

knew that the debtors had failed in business, and the ant's railroad 19 feet above the track. Whilst he was

subsequent depreciation of the stock constituted no upon the bridge defendant's train passed under it,

defense to an action on the indebtedness, it not apwhistling as it passed, at which plaintiff's horses took

pearing that the debtors took any steps to secure a fright and ran away, injuring him. The court say:

sale. (2) It did not alter the case that the stock was “It is as clearly the duty of a railroad company as it

transferred on the books and new stock issued to the is of a natural person to exercise its rights with a con

creditor. No sale was claimed, and he held only sub siderate and prudent regard for the rights and safety

modo. A plea to an action on the debt which sought of others; and for injuries occasioned by negligence,

to recoup because of the failure of the creditor to sell both are equally responsible. Nor is it any excuse or

the collateral, not caused by him, was demurrable. justification that the act occasioning the injury was in

Colquitt v. Stultz. itself lawful, or that it was done in the exercise of a lawful right, if the injury arose from the negligent


- PATENT. -manner in which it was done. If there was no danger

A court of equity has the power to enjoin to the persons and property of those who might be the publication and circulation of a libel. This printravelling along the public road, in running its trains

ciple is applicable to equitable rights arising under the without giving any notice of their approach to the

patent laws of the United States, where the legality bridge, then the company is not chargeable with negli

of the patent is not the subject of inquiry but is only gence in not giving it; but, if danger might be reason

collateral to the relief sought. Bell v. Singer Manuably apprehended, it was the duty of the company to

facturing Co. give some notice or warning in order that it might be avoided. If it would have been negligence in the

RECENT ENGLISH DECISIONS. plaintiff to drive upon the bridge just as the train was about to pass under it, had he been aware of its ap- EVIDENCE — OF AGE AND NATIVITY — REPORT OF proach, then he was entitled to notice, and it was the OFFICIAL COMMITTEE.— In 1790 M., who had been con. duty of the company to give it. Whether, therefore, sul in London for the Genoese government for about the company exercised proper care and diligence in ten years, applied to be appointed “agent" for that running the train, in order to prevent injury to the government, and a committee was instructed to report persons and property of those who were lawfully on as to his qualifications. M. was appointed agent, and the public road and in the vicinity of the crossing, was died in London in 1803. B., his daughter, and sole a question for the jury." See, also, Hill v. P. & R. R. next of kin, died intestate in London in 1871. In an Co., 55 Me. 438; Norton v. Eastern R., 113 Mass. 306 ; action brought by various persons claiming to be next Toledo, W. & W. Ry. Co. v. Harmon, 47 III. 293; Man- of kin to B., it was proposed to put in evidence the re



port of the committee made to the Genoese govern- An excuse on behalf of Mr. A. J. Abbott was rement in 1790, to prove the age and birthplace of ceived and filed. The minutes of the meeting held M. Held (affirming the judgment of the court February 18, 1880, were read and approved. The below), that the evidence was not admissible either amendment proposed by Albert Mathews to By-law X. as part of the res gestæ, or as being an entry by as follows: In the paragraph of said By-law X, coma deceased person in discharge of his duty, or as mencing with the words, “In case any standing coma public document mado by a public officer. Doe mittee shall fail to organize," strike out the words, v. Turford, 3 B. & Ad. 890, followed. Cases re- “whose duty it shall be to submit by mail,” etc., down ferred to: Higham v. Redgway, 2 Sm. L. C. 318; Price to and including the words, “as prescribed in the Byv. Lord Torrington, 1 id. 328; Irish Society v. Bishop laws;" also the whole of tho succeeding paragraph of Derry, 12 Cl. & F. 611; Price v. Littlewood, 3 Camp. ending with the words “by a plurality vote be elected 288; Arnold v. Bishop, v. Bath, 5 Biug. 316. House chairman of the committee,” and substitute in lieu of of Lords, June 18, 1880. Cturla v. Freccia. Opinions all the matters so stricken out the words following, by Lord Chancellor Selborne and Lords Blackburn viz., "to be the chairman thereof, and another memand Watson. 43 L. T. Rep. (N. S.) 209.

ber to be the secretary thereof, until otherwise proHUSBAND

vided by such committee," was taken up for considWIFE- AUTHORITY


eration. The secretary reported that he had on tho VOCATION OF IMPLIED AUTHORITY.-A husband who

15th day of April, 1880, pursuant to By-law XI, noti

fied in writing all members of the Executive Commitis able and willing to supply his wife with necessaries, and who has forbidden her to pledge his credit, cannot

tee, of the proposed amendment to By-law X, and had

invited the views of tho chairmen of the various be held liable for necessaries bought by her; and a tradesman, without notice of the husband's prohibi

standing committees in regard to the same, and also

read a letter received from John F. Seymour, Esq., tion and without having had previous dealings with the wife with his assent, camiot maintain an action

Chairman of the Committee on Grievances, relative

thereto. against him for the price of articles of female attire suitable to her station in life, and supplied to her upon

The question being taken on the adoption of the his credit but without his knowledge or assent. Jolly

amendmeut, the same was unanimously adopted.

The secretary also reported that pursuant to tho v. Reese, 15 C. B. (N. S.) 6:28; 33 L. J. (C. P.) 177, approved of. Ct. App., March 24, 1880. Debenham v.

resolution adopted at tho meeting of this committee,

held February 18, 1850, requesting that “the chairman Mellor. Opinions by Bramwell, Baggalay and Thesiger, L. JJ. L. R., 5 Q. B. D. 394.

and secretary of the committee prepare for publication

tho report of the annual meeting of 1879, pursuant to PUBLIC POLICY - COMPOUNDING CRIME AGREE- article XII of the Constitution, and that a sum not MENT NOT TO PROSECUTE MISDEMEANOR - RIGHT TO exceeding $600 be appropriated for that purpose” – RETURN OF SECURITIES DEPOSITED.- An agreement that they had discharged tho duties thereby imposed, not to go on with a prosecution of an offense of a pub- that the contract for the printing thereof was awarded lic nature for privato benefit is contrary to public to the Argus Company, for the sum of $419, they being policy avd bad. For tho purpose of this rule some the lowest bidders; that the usual number of copies misdemeanors aro considered to be of a private nature were printed and distributed, and that the bill for tho only, but all felonies and many misdemeanors (among samo had been audited to the abovo amount, and tho wbich is the crime of larceny by a bailee) are consid

same had been paid. ered to be of a public nature. It is immaterial whether Mr. Hand moved that the report be accepted and the proposal for the compromise proceeded in the first the action ratified. Adopted. instance from the prosecutor or from the accused per- The secretary reported that no determination had son or his friends. It is immaterial whether the judge been reached relative to bills for printing “Su ect presiding at the criminal trial did or did not give his and Regulations for Prize Essay of 1879." Further assent to the withdrawal of tho prosecution on the time was ranted. terms of the compromise. It is immaterial whether

The secretary presented bills as follows: the wrongful act charged against the accused person

Disbursements. was or was not sufficient to give rise to a right to proceed civilly as well as criminally. Where title deeds

Postage on Annual Reports, etc..

$53 48 have been deposited at a bank in order to insure the

Weed, Parsons & Co.....

7 25 carrying into effect of an agreement for a compromise

The Argus Company

52 25 of a prosecution, on the agreement being declared in- On motion the secretary was authorized to audit valid, the person who deposited the deeds is entitled bill for clerical services for the remainder of the year to have them returned to him. Clubb v. Hutson, 18 for an amount not exceeding $150, the balance of the C. B. (N. S.) 414; Keer v. Leeman, 3 L. T. Rep. 299, appropriation. and Osbaldiston v. Simpson, 7 id. 347; 1id. 535; Will- Mr. Ivins, Mr. Buchanan and Mr. Miller, from the iams v. Bayley, 14 L. T. Rep. (N. S.) 802. Ch. Div., Committee of Arrangements, reported that the arJuly 1, 1880. Whitmore v. Farley. Opinion by Fry, J. rangements for the annual meeting had been com43 L. T. Rep. (N. S.) 192.

pleted; that Hon. George W. Biddle, of Philadelphia, had been invited and had accepted the invitation to

deliver the annual address; that Essays had been NEW YORK STATE BAR ASSOCIATION.

promised by members from each of four districts, as MEETING OF THE EXECUTIVE COMMITTEE.

follows: Edward E. Sprague, of Flushing; Hon.

Mathew Halo, of Albany; James D. Teller, of AuA meeting of the Executive Committee was held, burn; Joshua Gaskill of Lockport; and that all mempursuant to a call issued by the chairman, at the office bers of the Association had been notified of the of the secretary, Albany, N. Y., November 15, 1880, annual meeting, by the secretary of this committee at 4 P. M. Mr. Mathews in the chair.

inclosing, with tho notice, a copy of the order of exerThere were present President Hand, Albert cises; that the arrangements had been made at tho Mathews, Clifford A. Hand, Elliott F. Shepard, First Kenmore Hotel for the annual dinner, same as last District; William M. Ivins, Second District; S. W. year, and that the Judges of tho Court of Appeals, Rosendale, Third District; Horace E. Smith, John R. and of the General Term of the Supreme Court, Third Putnam, Fourth District; and Bradley B. Burt, Fifth Department (to be in session), had been invited. District-a quorum.

Mr. Ivins moved that the sum of $150, or so much

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