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contract, with absolute right in the plaintiff to judicial process for collection, would be shocking to every man's sense of justice. The argument is that the judgment shall stand, for the plaintiff need only show the note, and the defendant, as actor, will not be heard alleging his own and the plaintiff's turpitude in an application for opening the judgment. In one sense the plaintiff is an actor; he caused confession of judgment on the void instrument, and uses the process of the law to collect the money agreed to be paid for its violation.

The reason of the rule which allows a defendant to plead and prove the illegality of a contract in bar of a suit upon it demands that he be heard on an application to open a judgment so confessed. His rights are of secondary importance, and he is not heard for their vindication. It is the duty of the court, on proper showing, to open such a judgment, to the end that there may be a trial as if suit had been originally commenced on the note, or other obligation, on which the judgment was entered. In this way the law may be vindicated, and the interests of the Commonwealth conserved.

The order and decree, discharging the rule to show cause why judgment should not be opened, reversed, and now the said rule is made absolute; the record to be remitted for further proceeding. Appellees to pay costs of this appeal.

NEW YORK COURT OF APPEALS ABSTRACT.

COUNTER-CLAIM― ARISING OUT OF SAME TRANSACTION ALLOWABLE, THOUGH NOT EXISTING WHEN ACTION COMMENCED. - A claim for overpayment upon a contract upon which an action was brought, held to be permissible as a counter-claim, to be set up by au amended or supplemental answer, whether it was a fact occurring after the first answer was put in or was one of which the defendant's attorney was ignorant when he made the first pleading. It was a claim that arose out of the contract or transaction set forth in the complaint and was also connected with the subject of the action. It fell within the first subdivision of old Code, section 150; it was not obnoxious to the condition stated in subdivision 2 that it must exist at the commencement of the action. And defendant would be entitled to prove and have judgment for the amount overpaid. The case of Ashley v. Marshall, 29 N. Y. 494, is, as far as it goes, in accord with this view. The case of Van Valen v. Lapham, 13 How. Pr. 240, does not conflict, the construction thero being under subdivision 2. Order of General Term reversed and judgment upon report of referee affirmed. Howard v. Johnston, appellant. Opinion by Folger, C. J. [Decided Oct. 5, 1880.]

CRIMINAL LAW

EVIDENCE LARCENY CHARGE TO JURY EXPRESSING OPINION AS TO GUILT.

- (1) Defendant was indicted for grand larceny in having stolen goods from R., by whom he had been employed, and for receiving stolen goods knowing them to havo been stolen. It was shown that when leaving the store of R. he was stopped and searched and a small amount of goods found on him. Some $200 worth of goods were found upon searching his barn the next day, but the evidence of ownership was so uncertain that the district attorney abandoned the prosecution as to them and a conviction was had for petit larceny. At the trial a question was asked of a witness who aided in the search of prisoner's house, "What did you find there?" Held, that the allowance of this question was not error, on the ground that it was proof of a separate offense. The evidence was admissible as tending to prove the charge of grand larceny, etc.; that it failed of its purpose did not make it incompetent. (2) At the conclusion of the evidence the court

was asked to charge "that the mere possession by the prisoner is not of itself sufficient to justify his conviction." The court answered, "taken in connection with the other evidence, I believe it is." Held, that it could not be claimed that the court expressed an emphatic opinion of the prisoner's guilt, and thereby substantially directed a conviction as a matter of law, when the judge had, before this request was made, fairly presented all the questions of fact and left to the jury to determine from the whole evidence the guilt or innocence of the accused. The province of the jury was in no manner involved. The ruling, taken in connection with the rest of the charge, was in substance that the question of the guilt or innocence of the accused was wholly for the jury, but if they should find him guilty, the evidence was legally sufficient to sustain the verdict. This comes within the rule in Stover v. People, 56 N. Y. 318, where it is said, that "in many cases judges have instructed juries that such proof was sufficient to convict. This is correct, with the addition that if it convinced them of the guilt of the party, which would ordinarily be implied from the direction." Judgment affirmed. Henze, plaintiff in error, v. People of New York. Opinion by Finch, J.

[Decided Oct. 5, 1880.]

MASTER AND SERVANT-NEGLIGENCE - CONTRIBUTORY NEGLIGENCE BY EMPLOYEE WHAT DOES NOT

CONSTITUTE.-In an action by one who had been employed as locomotive engineer by a railway company against such company, for injury by the overturning of an engine he was running, caused by the defective condition of defendant's road, it was claimed by defendant that plaintiff knew of the dangerous condition of the road when he run the engine, and was therefore negligent. It appeared that while plaintiff knew that the road was somewhat out of repair, it did not appear conclusively that he knew how badly it was out of repair, or that the danger was imminent or very great. Three or four passenger trains besides freight trains passed over the road each way daily, and no other accident was shown to have happened from the badness of the road. Plaintiff and other engineers had frequently run over the road with safety in the same way that he ran at the time of the accident. At that time he was by special order running his engine at the rate of twenty miles an hour without cars attached in front of a passenger train. Held, that the question as to whether plaintiff was guilty of contributory negligence was for the jury, and a nonsuit was not proper. In such a case the court must take into account a plaintiff's position. His business was that of an engineer, and unless he obeyed orders and ran his engine he would have been obliged to abandon the defendant's service. Of one thus situated the law should not be too exacting. The court must assume that the officers of defendant who had charge of the road and must have known its condition deemed it safe, and plaintiff had the right to rely somewhat upon their judgment. It would be a very unjust rule which would allow a master to shield himself from responsibility for the consequence of his own negligence, by alleging those acts, not inevitably or imminently dangerous, to have been negligent, which his servant performed by his express orders. Patterson v. Pittsburg, etc., R. Co., 76 Penn. St. 389. Judgment affirmed. Hawley v. Northern Central Railway Co., appellant. Opinion by Earl, J.

[Decided Oct. 15, 1880.]

TAXATION OF CORPORATION MUST BE AT PRINCIPAL OFFICE AS SET FORTH IN ITS CERTIFICATE OF INCORPORATION REVIEW OF ERRONEOUS NEED NOT BE BY CERTIORARI.—(1) Plaintiff, a corporation organized under the "Act for the incorporation of companies formed to navigate the lakes and rivers," passed April

15, 1854, filed in the proper offices the required certificate of incorporation, in and by which, as directed by the act, it certified and declared that "the name of the town and county in which the principal office for managing the affairs of such company is to be situated, is the town of Clarkstown, in the county of Rockland, in the State of New York." It was always assessed, when assessed for taxation, in the county named, and paid taxes, and in the town named its annual meetings for the election of directors and the choice of officers were always held, sometimes in a room in the village of Nyack, sometimes in a store in Upper Nyack, and once in a railroad car. No other business was transacted there, though a sign "The Union Steamboat Co." was kept up at principal office. The rest of its business was mainly transacted at Buffalo. The company's business was transporting freight on the great lakes in which some twenty propellers were used whose home port was Buffalo. In that city the managers resided and controlled a large and profitable business with the aid of numerous clerks, who kept the general accounts of the company, received its income and paid its expenses and managed its affairs very much after the manner of a resident corporation. Held, that the corporation was taxable in Rockland county and not in Buffalo. Western Transportation Co. v. Scheu, 19 N. Y. 408; Oswego Starch Factory v. Dolloway, 21 id. 449. In these cases it was held that for the purposes of taxation, the principal office of the corporation was fixed conclusively by the certificate of incorporation and that in the county thus designated and in that alone a corporation could lawfully be taxed. This would not be affected by the fact that the principal office of plaintiff was located in the county of Rockland to avoid taxation. (2) The assessors of Buffalo imposed upon plaintiff a tax which plaintiff (upon the ground that its principal office was located elsewhere) opposed before the assessors, but ineffectually. The collector of taxes levied upon one of plaintiff's steamers to collect the tax, whereupon, to secure the release of its property, plaintiff paid the tax under protest. Held, that an action to recover back the amount paid would lie against the city, and the city could not set up that the assessors, having aeted judicially, the only remedy for error on their part was certiorari. Where assessors have jurisdiction, certiorari is the proper remedy, but this is not so where they have no right to act at all. In this case they had no jurisdiction. See National Bk. v. City of Elmira, 53 N. Y. 49. Judgment affirmed. Union Steamboat Co. v. City of Buffalo, appellant. Opinion by Finch, J.

[Decided Oct. 15, 1880.]

UNITED STATES SUPREME COURT ABSTRACT.

OCTOBER TERM, 1880.

APPEAL WHEN ORDER FOR CONTEMPT NOT REVIEWABLE. Fischer brought a suit in equity in the Circuit Court to restrain Hayes from using a certain patented device. In this suit an interlocutory injunction was granted. Upon proceedings for violating this injunction the Circuit Court ordered Hayes to pay the clerk $1,389.99 as a fine, and that he stand committed until the order was obeyed. To reverse this order Hayes sued out this writ of error, which Fischer moved to dismiss, on the ground that such proceedings in the Circuit Court cannot be re-examined here. This court held that if the order complained of is to be treated as part of what was done in the original suit, it cannot be brought here for review by writ of error. Errors in equity suits can only be corrected in this court on appeal, and that after a final decree. This order, if part of the proceedings in the suit, was interlocutory only. If the proceeding below, being for contempt, was independ

ent of and separate from the original suit, it cannot be re-examined here either by writ of error or appeal. This was decided more than fifty years ago in Kearney's case, 7 Wheat. 39, and the rule then established was followed as late as New Orleans v. Steamship Co., 20 Wall. 392. In error to United States Circuit Court, S. D. New York, motion to dismiss writ granted. Hayes, plaintiff in error, v. Fischer. Opinion by Waite, C. J.

JURISDICTION -OF FEDERAL COURTS NOT CONFERABLE BY CONSENT OF PARTIES REMOVAL OF CAUSE FROM STATE COURT DEPENDENT UPON SUBJECT-MATTER. While the mere consent of parties cannot confer upon the courts of the United States the jurisdiction to hear and decide their cases, for if it could those courts would become the common resort of persons who have no right, either under the Constitution of the United States nor by the laws creating them, to litigate in them, where there are conflicting suits in relation to the same property (a railroad), one in a State court and the other in a Federal court, and the Federal court has possession of the property, the parties in the suit in the State court may by consent remove the cause into the Federal court. That court by taking possession of the property had drawn to itself the subject-matter of the litigation and the right to decide upon the conflicting claims to the possession and control of the road. These principles are not new in this court. They will be found to be sustained by the cases of Minnesota Co. v. St. Paul Co., 2 Wall. 609; Watson v. Jones, 13 i. 715; Freeman v. Horne, 24 How. 450; and Buck v. Colbath, 3 Wall. 337. In consenting, therefore, to the voluntary transfer of the litigation from the State court into the Federal court, the parties did no more than what they could have been compelled to do by the injunction of the latter, and what would have been done by such compulsory order if they had not submitted to it by agreement. Wiswall v. Sampson, 14 How. 52. Judgment of United States Circuit Court, S. D. Illinois, affirmed. People's Bank of Belleville, plaintiff in error, v. Winslow et al. Opinion by Miller, J.

JURISDICTION-FEDERAL COURTS SUITS FOR COLLISION FEDERAL QUESTION.-The single question here was whether the courts of the United States, as courts of admiralty, have exclusive jurisdiction of suits in personam, growing out of collisions between vessels while navigating the Ohio river. The court hold that this is a Federal question giving it jurisdiction, but being decided as it was substantially in The Moses Taylor, 4 Wall. 431; Hine v. Trevor, id. 571; The Belfast, 7 id. 642; Leon v. Garcelon, 11 id. 190; and Steamboat Co. v. Chase, 16 id. 531, it is not any longer open to argument. The Judiciary Act of 1789 (1 Stat. 76, § 9), reproduced in section 563, Rev. Stat., paragraph 8, which confers admiralty jurisdiction on the courts of the United States, expressly saves to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it. That there always has been a remedy at common law for damages by collision at sea cannot be denied. Motion to dismiss denied, and that to affirm granted. In error to Pennsylvania Supreme Court. Schoonmaker et al., plaintiffs in error, v. Gilmore. Opinion by Waite, C. J.

PRACTICE - REHEARING AFTER JUDGMENT.-A petition for rehearing after judgment, under the rule promulgated in Public Schools v Walker, 9 Wall. 604, cannot be filed, except at the term in which the judgment was rendered. In Hudson v. Guestier, 7 Cr. 1, a motion was made at the February term, 1812, for a rehearing in a case decided two years before, but the court said "the case could not be reheard after the term in which it was decided." At the end of the term, the parties are discharged from further attend

ance on all causes decided, and we have no power to bring them back. After that, we can do no more than correct any clerical errors that may be found in the record of what we have done. In Brown v. Aspden, 14 How. 26, where the practice in respect to orders for rearguments was first formally announced, the rule in this particular was not extended, for Chief Justice Taney was careful to say that the order for reargument might be made after judgment, provided it was entered at the same term; and in United States v. Knight, 1 Black. 490, the same limitation is maintained. Down to that time such an order could be made only on the application of some member of the court-who concurred in the judgment, and this continued until Public Schools v. Walker, supra, when leave was given counsel to submit a petition to the same effect. In all other respects the rule is now substantially the same as it was before this relaxation. Appeal from United

States Circuit Court, Iowa. Brooks et al., appellants, v. Burlington & Southwestern Railway Co. Opinion by Waite, C. J.

UNITED STATES CIRCUIT AND DISTRICT

COURT ABSTRACT.

COMMON CARRIER-HAS NO RIGHT TO EXAMINE CONTENTS OF PARCELS INTRUSTED TO HIM.-The refusal of a railroad company to carry an express company's safes and chests, unless it was allowed to open the same and inspect their contents, or was furnished with an inventory of such contents, with the further understanding that the railroad company might, whenever it saw fit, open and inspect the safes and chests of the express company, and also collect the freight on each separate article or parcel contained therein, as if each had been shipped by itself, violates both the express company's rights as a shipper, and the terms of an interlocutory judgment temporarily restraining an interference with the express company's business. In the Nitro Glycerine case, 15 Wall. 524, it was held that express carriers were not chargeable with notice of the contents of the packages they carry. The court then remarks: "If express carriers are thus chargeable with notice of the contents of packages carried by them, they must have the right to refuse to receive packages offered for carriage without a knowledge of their contents. It would in that case be unreasonable to require them to accept as conclusive, in every instance, the information given by the owner. They must be at liberty, whenever in doubt, to require for their satisfaction an inspection even of the contents, as a condition of carrying the packages. This doctrine would be attended, in practice, with great inconvenience, and would seldom lead to any good. Fortunately, the law is not so unreasonable. It does not exact any such knowledge on the part of the carrier, nor permit him, in cases free from suspicion, to require information as to the contents of the packages offered." In Leaf v. Tuton, 10 Mees. & W. 397, a number of small parcels belonging to different owners were united in one large package, and directed to one person as consignee, and it was held that the carrier was bound to take the package, charging for it as if each parcel belonged to one person, and that there was no right to charge upon each separate parcel as if it had been shipped by itself. U.S. Circ., Indiana, June, 1880. Dinsmore v. Louisville, New Albany & Chicago Railroad Co. Opinion by Gresham, D. J. CONSTITUTIONAL LAW-EFFECT OF STATUTE LAW UPON PROVISION OF CONSTITUTION.-Section 2, art. 12, of the Constitution of Massachusetts, provides that dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law. Held, that suit could not be maintained by virtue of this constitu

tional provision, without reference to the statutes of the State passed in fulfillment of the constitutional mandate. Groves v. Slaughter, 15 Pet. 449; Fusz v. Spaunhorst, 67 Mo. 256; Railroad v. Buchanan, 39 id. 485; French v. Teschemaker, 24 Cal. 518; Gray v. Coffin, 9 Cush. 192; Erickson v. Nesmith, 15 Gray, 221; Windham Prov. Inst. v. Sprague, 43 Vt. 502; Priest v. Manuf. Co., 115 Mass. 380; Shaft Co. v. Evans, 72 Penn. St. 331; Lowry v. Inman, 46 N. Y. 119; Dauchy v. Brown, 24 Vt. 197; Thompson on Liab. Stockh., § 56; Knowlton v. Ackley, 8 Cush. 93; Cambridge Waterworks v. Dyeing & Bleaching Co., 4 Allen, 239; Briggs v. Penniman, 1 Hopkins, 300; S. C., 8 Cow. 387; Slee v. Bloom, 19 Johns. 456; Bank of Poughkeepsie v. Ibbottson, 24 Wend. 473. U. S. Circ., Massachusetts, Sept. 1880. Morley v. Thayer. Opinion by Clifford, C. J. JURISDICTION OF FEDERAL COURT-NEGOTIABLE INSTRUMENT.-(1) The Circuit Courts of the United States have jurisdiction, under section 1, chapter 137, of the act of March 3, 1875, over a suit brought by the assignee of a municipal bond, where such bond is in form a simple acknowledgment of indebtedness, and an unconditional promise to pay a certain sum of money at a time certain. (2) The words "bearer" or "order" are not essential to the negotiability of a promissory note. See City of Lexington v. Butler, 14 Wall. 282, 293; Brainerd v. N. Y. & H. R. Co., 25 N. Y. 496; Blake v. Sup'rs S. Co., 61 Barb. 149; 3 Kent's Com. 77; Story on Notes (7th ed.), §§ 43 and 44; Daniels on Neg. Instr., § 1046; Klauber v. Biggerstaff, 47 Wis. 551. U. S. Ciro. Ct., W. D. Wisconsin, July, 1880. Porter v. City of Jonesville. Opinion by Bunn, D. J.

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IOWA SUPREME COURT ABSTRACT. OCTOBER, 1880.

CORPORATION-SUBSCRIPTION

ΤΟ STOCK WHAT CONSTITUTES VALID SUBSCRIPTION.-Defendant subscribed a statement and the articles of incorporation of a banking corporation. The statement read thus: We, the undersigned, having associated ourselves together for the purpose of organizing a banking association, and transacting the business of banking, under chapter 52 of the revision of 1860, do declare and state as follows: First, the name and title of the association shall be the Farmers & Merchants' Bank of Bloomfield, Iowa; second, the authorized capital of said Farmers and Merchants' Bank of Bloomfield, Iowa, shall be $150,000, which shall be divided into shares of $100 each; third, the name and residence of the shareholders of this association, with the number of shares held by each, are as follows: " To this was appended defendants' subscription thus, "J. W. Claytou, 10 shares." The articles of incorporation contained this: "Eighth. Fifty per cent of all the stock subscribed for this association before it commences business shall be paid in at the time of commencing business, and the balance so subscribed shall be paid in at such times and in such installments as the board of directors may prescribe." The directors called for full payment for the stock subscribed. Held, in an action by the assignee of the bank to recover fifty per cent unpaid on the stock, that the subscription was a valid one and defendant liable for the amount unpaid. In Spears v. Crawford, 14 Wend. 20, the writing subscribed was in these words: "We, the subscribers, do hereby severally agree to take the shares by us subscribed in the Harlem Caual Company." A certain number of shares was set opposite the name of each subscriber. The question presented was whether the mere agreement to take shares rendered the defendant liable to pay for them. The court held that it did. In Hartford & N. H. R. Co. v. Kennedy, 12 Conn. 500, the word "subscriber" was used in what was claimed to

be the subscription to stock. It was held that the subscriber was liable to pay for the stock without a promise to do so in so many words. The court said: "It is true a promise to pay in precise terms does not appear to have been made. The defendant has not affixed his signature to an instrument which contains the words 'I promise to pay,' but he has done an equivalent act. He has contracted with the plaintiff to become a member of the corporation and to be interested in its stock." In Rensselaer & W. P. Co. v. Barton, 16 N. Y. 460, the court said: "Whatever may be the form or language of a subscription to the stock of an incorporated company, any person who in any manner becomes a subscriber for, or engages to take any portion of the stock of such company, thereby assumes to pay according to the conditions of the charter." See, also, Small v. Herkimer Manuf., etc., Co., 2 Comst. 335; Dayton v. Borst, 31 N. Y. 437; Hartford & N. H. R. Co. v. Crowell, 5 Hill, 384; W. & M. R. Co. v. Dwyer, 49 Iowa, 121. Nultor. v. Clayton. Opinion by Adams, C. J.

NEGLIGENCE-ENGINE ON RAILWAY NEAR HIGHWAY MAKING NOISE WITHOUT NOTICE- QUESTION OF FACT.-While plaintiff was approaching defendants' railway crossing on the highway with his horses, an engine which stood still, without notice made a noise caused by blowing off steam and ringing a bell, preparatory to backing, whereby the horses were frightened and overturned plaintiff's wagon, injuring him. In an action for such injury, held, that whether defendant was under obligation to notify plaintiff of the intended noise and movement was a question of fact to be determined from all the surrounding circumstances. If the noise and movement were likely to be attended with danger to plaintiff, then it was the duty of defendant to exercise reasonable and ordinary care to prevent injury; and if the exercise of such reasonable and ordinary care, under the circumstances, would require notice in some manner to plaintiff, then it was the duty of defendant, as a matter of law, to give such notice. The true doctrine upon this subject is stated in Penn. R. Co. v. Barnet, 59 Penn. St. 259. There the plaintiff was driving over a bridge which crossed the defendant's railroad 19 feet above the track. Whilst he was upon the bridge defendant's train passed under it, whistling as it passed, at which plaintiff's horses took fright and ran away, injuring him. The court say: "It is as clearly the duty of a railroad company as it is of a natural person to exercise its rights with a considerate and prudent regard for the rights and safety of others; and for injuries occasioned by negligence, both are equally responsible. Nor is it any excuse or justification that the act occasioning the injury was in itself lawful, or that it was done in the exercise of a lawful right, if the injury arose from the negligent manner in which it was done. If there was no danger to the persons and property of those who might be travelling along the public road, in running its trains without giving any notice of their approach to the bridge, then the company is not chargeable with negligence in not giving it; but, if danger might be reasonably apprehended, it was the duty of the company to give some notice or warning in order that it might be avoided. If it would have been negligence in the plaintiff to drive upon the bridge just as the train was about to pass under it, had he been aware of its approach, then he was entitled to notice, and it was the duty of the company to give it. Whether, therefore, the company exercised proper care and diligence in running the train, in order to prevent injury to the persons and property of those who were lawfully on the public road and in the vicinity of the crossing, was a question for the jury." See, also, Hill v. P. & R. R. Co., 55 Me. 438; Norton v. Eastern R., 113 Mass. 366; Toledo, W. & W. Ry. Co. v. Harmon, 47 Ill. 298; Man

chester, etc., Ry. Co. v. Fullarton, 14 C. B. (N. S.) 53. Hart v. Chicago, Rock Island & Pacific Railway Co. Opinion by Day, J.

REAL ESTATE - BUILDING ERECTED BY LICENSE ON RAILROAD, RIGHT OF WAY NOT.-S. owned a mill near a railroad company's right of way. By permission of the company he erected an elevator on the right of way. The machinery in this he operated by shafting carried from this mill across lands of another to the elevator. Held, that the elevator was a mere chattel not subject to a judgment lien and was liable to be seized upon execution. "A house erected by one man upon the land of another, by his assent, and upon an agreement or understanding that the builder may remove it when he pleases, does not become a part of the real estate, but remains a personal chattel, and removable." 3 Wait's Act. and Def. 381. Even if S. had held a lease of the land upon which the building was erected, and had built it for the purpose of carrying on his business therein, he would have had the right of removal; and in such case it has been held that the building would have been personal property during his term of lease, and liable to be levied upon and sold as personal property for his debts. Heffner v. Lewis, 73 Penn. St. 302; Lemor v. Miles, 4 Watts, 330; Amos & Ferr. on Fix., 250; 3 Wait's Act, and Def. 391. Walton v. Wray. Opinion by Rothrock, J.

GEORGIA SUPREME COURT ABSTRACT.

OCTOBER 12, 1880.

DEBTOR AND CREDITOR-DUTY OF CREDITOR AS TO COLLATERAL SECURITY. - (1) One who receives collateral security is bound to the use of reasonable diligence in connection therewith. If the collateral be promissory notes or like evidences of debt, he is bound to use ordinary diligence to collect them. But where stock, worth about par, was deposited as collateral security, the creditor was not compelled, on failure of the debtor to pay the debt, to sell the collateral; although he had the option to do so, in the manner provided by the Code, section 2140. His not selling, although he knew that the debtors had failed in business, and the subsequent depreciation of the stock constituted no defense to an action on the indebtedness, it not appearing that the debtors took any steps to secure a sale. (2) It did not alter the case that the stock was transferred on the books and new stock issued to the creditor. No sale was claimed, and he held only sub modo. A plea to an action on the debt which sought to recoup because of the failure of the creditor to sell the collateral, not caused by him, was demurrable. Colquitt v. Stultz.

INJUNCTION-CIRCULATING LIBEL-JURISDICTION -PATENT. A court of equity has the power to enjoin the publication and circulation of a libel. This principle is applicable to equitable rights arising under the patent laws of the United States, where the legality of the patent is not the subject of inquiry but is only collateral to the relief sought. Bell v. Singer Manufacturing Co.

RECENT ENGLISH DECISIONS.

EVIDENCE- -OF AGE AND NATIVITY -REPORT OF OFFICIAL COMMITTEE.— In 1790 M., who had been consul in London for the Genoese government for about ten years, applied to be appointed "agent" for that government, and a committee was instructed to report as to his qualifications. M. was appointed agent, and died in London in 1803. B., his daughter, and sole next of kin, died intestate in London in 1871. In an action brought by various persons claiming to be next of kin to B., it was proposed to put in evidence the re

port of the committee made to the Genoese government in 1790, to prove the age and birthplace of M. Held (affirming the judgment of the court below), that the evidence was not admissible either as part of the res gesta, or as being an entry by a deceased person in discharge of his duty, or as a public document made by a public officer. Doe v. Turford, 3 B. & Ad. 890, followed. Cases referred to: Higham v. Redgway, 2 Sm. L. C. 318; Price v. Lord Torrington, 1 id. 328; Irish Society v. Bishop of Derry, 12 Cl. & F. 641; Price v. Littlewood, 3 Camp. 288; Arnold v. Bishop, v. Bath, 5 Bing. 316. House of Lords, June 18, 1880. Cturla v. Freccia. Opinions by Lord Chancellor Selborne and Lords Blackburn and Watson. 43 L. T. Rep. (N. S.) 209.

HUSBAND

AND WIFE AUTHORITY ΤΟ PLEDGE CREDIT DURING COHABITATION - NECESSARIES-REVOCATION OF IMPLIED AUTHORITY.-A husband who is able and willing to supply his wife with necessaries, and who has forbidden her to pledge his credit, cannot be held liable for necessaries bought by her; and a tradesman, without notice of the husband's prohibition and without having had previous dealings with the wife with his assent, cannot maintain an action against him for the price of articles of female attire suitable to her station in life, and supplied to her upon his credit but without his knowledge or assent. Jolly v. Reese, 15 C. B. (N. S.) 628; 33 L. J. (C. P.) 177, approved of. Ct. App., March 24, 1880. Debenham v. Mellor. Opinions by Bramwell, Baggalay and Thesiger, L. JJ. L. R., 5 Q. B. D. 394.

PUBLIC POLICY COMPOUNDING CRIME AGREEMENT NOT TO PROSECUTE MISDEMEANOR — RIGHT TO RETURN OF SECURITIES DEPOSITED.- An agreement not to go on with a prosecution of an offense of a public nature for private benefit is contrary to public policy and bad. For the purpose of this rule some misdemeanors are considered to be of a private nature only, but all felonies and many misdemeanors (among which is the crime of larceny by a bailee) are considered to be of a public nature. It is immaterial whether the proposal for the compromise proceeded in the first instance from the prosecutor or from the accused person or his friends. It is immaterial whether the judge presiding at the criminal trial did or did not give his assent to the withdrawal of the prosecution on the terms of tho compromise. It is immaterial whether the wrongful act charged against the accused person was or was not sufficient to give rise to a right to proceed civilly as well as criminally. Where title deeds have been deposited at a bank in order to insure the carrying into effect of an agreement for a compromise of a prosecution, on the agreement being declared invalid, the person who deposited the deeds is entitled to have them returned to him. Clubb v. Hutson, 18 C. B. (N. S.) 414; Keer v. Leeman, 3 L. T. Rep. 299, and Osbaldiston v. Simpson, 7 id. 347; 1 id. 535; Williams v. Bayley, 14 L. T. Rep. (N. S.) 802. Ch. Div., July 1, 1880. Whitmore v. Farley. Opinion by Fry, J. 43 L. T. Rep. (N. S.) 192.

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An excuse on behalf of Mr. A. J. Abbott was received and filed. The minutes of the meeting held February 18, 1880, were read and approved. The amendment proposed by Albert Mathews to By-law X. as follows: In the paragraph of said By-law X, commencing with the words, "In case any standing committee shall fail to organize," strike out the words, 'whose duty it shall be to submit by mail," etc., down to and including the words, "as prescribed in the Bylaws;" also the whole of the succeeding paragraph ending with the words "by a plurality vote be elected chairman of the committee," and substitute in lieu of all the matters so stricken out the words following, viz., "to be the chairman thereof, and another member to be the secretary thereof, until otherwise provided by such committee," was taken up for consideration. The secretary reported that he had on tho 15th day of April, 1880, pursuant to By-law XI, notified in writing all members of the Executive Committee, of the proposed amendment to By-law X, and had invited the views of the chairmen of the various

standing committees in regard to the same, and also read a letter received from John F. Seymour, Esq., Chairman of the Committee on Grievances, relative thereto.

The question being taken on the adoption of the amendment, the same was unanimously adopted.

resolution adopted at the meeting of this committee, The secretary also reported that pursuant to tho held February 18, 1880, requesting that "the chairman and secretary of the committee prepare for publication the report of the annual meeting of 1879, pursuant to article XII of the Constitution, and that a sum not exceeding $600 be appropriated for that purpose' that they had discharged the duties thereby imposed, that the contract for the printing thereof was awarded to the Argus Company, for the sum of $419, they being the lowest bidders; that the usual number of copies were printed and distributed, and that the bill for tho samo had been audited to the abovo amount, and tho same had been paid.

Mr. Hand moved that the report be accepted and the action ratified. Adopted.

The secretary reported that no determination had been reached relative to bills for printing "Subject and Regulations for Prize Essay of 1879." Further time was granted.

The secretary presented bills as follows:
Disbursements.

Postage on Annual Reports, etc..
Weed, Parsons & Co.....
The Argus Company

$53 48

7 25

52 25

On motion the secretary was authorized to audit bill for clerical services for the remainder of the year for an amount not exceeding $150, the balance of the appropriation.

Mr. Ivins, Mr. Buchanan and Mr. Miller, from the Committee of Arrangements, reported that the arrangements for the annual meeting had been completed; that Hon. George W. Biddle, of Philadelphia, had been invited and had accepted the invitation to deliver the annual address; that Essays had been promised by members from each of four districts, as follows: Edward E. Sprague, of Flushing; Hon. Mathew Hale, of Albany; James D. Teller, of Auburu; Joshua Gaskill of Lockport; and that all members of the Association had been notified of the annual meeting, by the secretary of this committee inclosing, with the notice, a copy of the order of exercises; that the arrangements had been made at the Kenmore Hotel for the annual dinner, same as last year, and that the Judges of the Court of Appeals, and of the General Term of the Supreme Court, Third Department (to be in session), had been invited.

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

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