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have not been assigned for error; and if they had been, it would not have benefited the defendant, as the questions presented fall within the rules already sufficiently explained.

Nothing remains for remark except to advert very briefly to certain irregularities which appear in the proceedings. Judgment was rendered in the first suit before the parties went to trial in the second, and yet the defendants were allowed to file eight bills of exceptions, which purport to be applicable to each of the two cases; and the judgment in each case is removed here by one writ of error, though the transcript does not show that the two cases were ever consolidated. Such proceedings are palpably irregular; but inasmuch as they are not the subject of objection by either party, the court has decided to exercise jurisdiction and dispose of the controversy. Separate judgments having been entered in the court of original jurisdiction, the judgment rendered here must be separately applied in the court below. Judgment affirmed.


When Constitution does not affect previous statutes. - The Constitution of Missouri, taking effect July 4, 1865, provided that "the general assembly shall not authorize," etc., * * * "unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto." Held, to apply only to future acts, and not to past ones. (State v. Macon County Court, 41 Mo. 453; State v. Greene County, 54 id. 540; Henry County v. Nicolay, U. S. Sup. Ct. Mss.) Judgment of Circuit Court, W. D. Missouri, affirmed. County of Macon, plaintiff in error, v. Shores. Opinion by Swayne, J.


1. Contract made with government: provisions of act authorizing, must be followed: alteration of, without authority. By an act of Congress, provision was made for the erection of a public building under the direction of the Secretary of the Treasury. Plaintiff contracted to furnish material for such building of a certain kind, the contract providing that no departure from its condition should be made without "the written consent of the Secretary of the Treasury." Plaintiff furnished under a subsequent oral agreement with the assistant superintendent having charge of the erection of the building, material better than that called for by the original contract. Held, that the assistant superintendent had no authority to enlarge the terms of the original contract, and plaintiff could not claim compensation for the value of the material furnished, but only the contract price for the material he was required by the contract to furnish. Decree of Court of Claims affirmed. Hawkins, appellant, v. United States. Opinion by Clifford, J.

2. Verbal agreements altering written contract: effect of.-Verbal agreements between the parties to a written contract, made before or at the time of the execution of the contract, are in general inadmissible to vary its terms or to affect its construction, the rule being that all such verbal agreements are to be considered as merged in the written instrument. But oral agreements subsequently made on a new and valuable consideration, and before the breach of the contract, in cases not falling within the statute of frauds,

stand upon a different footing, as such agreements may, if not within the statute of frauds, have the effect to enlarge the time of performance, or may vary any other of its terms, or may waive and discharge it altogether. (Emerson v. Staler, 22 How. 41; Goss v. Nugent, 5 Barn. & Ad. 65; Nelson v. Boynton, 3 Metc. 402; Harvey v. Grabbam, 5 Ad. & El. 61; Leonard v. Vredenburg, 8 Johns. 39; Chit. on Con. [10th ed.] 105). Ib 3. Express stipulations and implied promises.- Express stipulations cannot in general be set aside or varied by implied promises, or, in other words, a promise is not implied where there is an express written contract, unless the express contract has been rescinded or abandoned or has been varied by the consent of the parties. Hence the rule is that if there be an express written contract between the parties, the plaintiff, in an action to recover for work and labor done, or for money paid, must declare upon the written agreement so long as the special agreement remains in force and unrescinded, as he cannot recover, under such circumstances, upon a quantum meruit. (1 Story on Cont. [5th ed.], § 18; Selway v. Foy, 5 Mees. & Wels. 83; Creighton v. Toledo, 18 Ohio St. 451; Weston v. Davis, 24 Me. 375; Whiting v. Sullivan, 7 Mass. 109; Merrill v. Railroad, 16 Wend. 588; Glacius v. Black, 50 N. Y. 150; Bain v. Miller, 4 Taunt. 743; Inchbald v. Railway, 17 C. B. [N. S.] 733; Bartholomew v. Markwick, 15 id. 711; Touissaint v. Martinnant, 2 Term, 105; Culler v. Powell, 6 id. 324; Fergueson v. Carrington, 9 B. & C. 59; Dennett v. Atherton, L. R., 7 Q. B. 327; Mayor v. Eschbach, 17 Md. 283.) Ib.

4. Authority conferred by law upon officials must be taken notice of. - Individuals as well as courts must take notice of the extent of the authority conferred by law upon a person acting in an official capacity, and the rule applies in such a case that ignorance of the law furnishes no excuse for any mistake or wrongful act. (State v. Hayes, 52 Mo. 580; Delafield v. State, 26 Wend. 22; People v. Bank, 24 id. 433; Mayor v. Reynolds, 20 Md. 11; Whitside v. U. S., 3 Otto, 257.) Ib.


Internal revenue tax: secondary: when testimony of witnesses not admissible. · In an action to recover, from a collector of internal revenue, the amount paid upon a tax for "1,350 barrels of beer sold and removed from plaintiff's brewery without proper stamps," plaintiffs offered to prove by witnesses on the stand that, from the date at which the internal revenue act of 1866 went into effect, until the assessment complained of was made, "no beer was sold or removed from their brewery for consumption or sale except in barrels or parts of barrels which were all duly stamped with an internal revenue stamp * * * as required by the act of Congress;" that they "had made their monthly returns to the collector regularly until and including the month of December, 1873; that there was no under-statement or under-valuation in either of said returns of the quantity of beer brewed, or of beer sold or removed from their brewery for consumption or sale, and that neither of the returns was false or fraudulent." The books required by the revenue law to be kept by a brewer were not produced, and no attempt to account for their absence, nor any claim of defective entries in plaintiff's returns was made. Held, that the evidence was not admissible. Judgment of Circuit Court, E. D., Pennsylvania, affirmed. Bergdoll, plaintiff in error, v. Pollock. Opinion by Waite, C. J.


Construction of contract: premium notes: paid-up policy. In a policy of life insurance, and in the agreement for the same (the premiums upon which were payable partly in money, and partly by note), it was provided that the amount of the note given for the designated part of the annual premium, was to be "a permanent loan from the company, bearing interest at the rate of seven per cent until paid by dividends." The part of the premium for which the note was given, was described as "the amount of premium loaned this year," and the policy provided that the amount of the note unpaid, if any, when the sum secured by the policy became payable, was to be deducted from the amount of the insurance money to be paid. The policy declared that in case of a paid-up policy being taken, the amount thereof should be determined by the sum of the premiums paid in cash. Held, that when a paid-up policy was taken, the amount of the notes could not be deducted from the sum to which the old policy showed the policy-holder to be entitled, but the debt of the notes would be a lien against the new policy, payable, with interest, when that should become due. Decree of Circuit Court, E. D. Missouri, affirmed. Brooklyn Life Ins. Co., appellant, v. Dutcher. Opinion by Swayne, J.


1. Evidence of good faith of holder, when admissible. -In an action upon a negotiable coupon belonging to a municipal bond, the petition averred that plaintiff was the bona fide holder of the coupon; this was denied by the answer. Held, that plaintiff was entitled to show by affirmative proof that he was a bona fide holder. Judgment of Circuit Court, W. D. Missouri, affirmed. County of Macon, plaintiff in error, v. Shores. Opinion by Swayne, J.

2. Nul tiel corporation, when plea of, not allowed. It was objected by defendant that the corporation for whose benefit the bond was issued was not organized within the time limited by the charter. Held, unavailing. It cannot be shown in defense to a suit of a corporation, that the charter was obtained by fraud; neither can it be shown that the charter has been forfeited by misuser or nonuser. Advantage can only be taken of such forfeiture by process on behalf of the State, instituted directly against the corporation for the purpose of avoiding its charter, and individuals cannot avail themselves of it in collateral suits until it be judicially declared. (Kaiser v. Trustees of Bremen, 16 Mo. 90; Smith v. County of Clarke, 54 id. 58; Olcott v. Bynum, 17 Wall. 58.) Ib.

3. Presumption of authority to issue bonds. · Where a corporation has power under any circumstances to sue negotiable securities, the bona fide taker has a right to presume they were issued under circumstances which gave the requisite authority, and that they are no more liable to be impeached for any infirmity, in the hands of the holder, than any other commercial paper. (Supervisors v. Schenck, 5 Wall. 784; Herne v. Nichols, 1 Salk. 289; 'Merchants' Bank v. State Bank, 10 Wall. 646; Steamboat Company v. McCutchen and Collins, 13 Penn. St. 13.) Ib.


1 Evidence of experts: where admissible. — In an action to recover for the loss of plaintiff's barge, which defendants undertook to tow through Long Island Sound, a witness who had testified that for many years

he had been captain of a tug-boat, and was familiar with the making up of tows; that he was a pilot and had towed vessels on Long Island Sound, and was familiar with the wates of Chesapeake Bay, was asked: "With your experience, would it be safe or prudent for a tug-boat on Chesapeake Bay, or any other wide water, to tug three boats abreast, with a high wind?" Held, a proper question. Clark v. Baird, 9 N. Y. 183; Bears v. Copely, 10 id. 93; Harris v. Panama R. R. Co., 4 Jones & Spencer, 373; Jackson v. N. Y. C. R. R. Co, 2 T. & C. 653; Moore v. Westcoult, 9 Bosw. 558; Price v. Hartshorn, 44 N. Y. 94; Walsh v. Washington Marine Ins. Co., 32 id. 427. Judgment of Circuit Court, E. D., Pennsylvania, affirmed. Eastern Transportation Line, plaintiff in error, v. Hope. Opinion by Hunt, J.

2. Tug-boat towing barge: what care required of tug owner. In reply to a request by defendant to charge, the court answered: "By the contract between the parties the defendants undertook to tow the plaintiff's barge from Jersey City to New Haven. As a necessary incident of this engagement the defendants were entitled and were bound to assume supreme control and direction of the plaintiff's boat, and of the persons in charge of her, so far as was necessary to enable them to fulfill their engagement, and they were bound to exercise such degree of diligence and care as a prudent and skillful performance of the service for which they stipulated would require." Held, no error. (Alexander v. Greene, 3 Hill, 9.) Ib.

3. Error in request to charge. If a request to charge contains one unsound proposition, it is not error to refuse to make the charge, although it contains many sound propositions. (Bearer v. Taylor, 93 U. S. 46.) Ib.

4. Neglecting endangered property to save life not negligence contributing to loss of property. At the time of the accident the boat of the plaintiff was in danger of sinking; he believed the danger to be imminent, and to save his own life jumped from his boat to the tug, leaving his boat without the care or control of any one on board of his boat. Held, that plaintiff was not guilty of contributory negligence so as to defeat a recovery. Ib.



1. What is to render void conveyance of lands held adversely.-A., having a life estate in lands, conveyed them in fee to defendant who took possession and asserted title to the fee. After the death of A., the remainderman conveyed the lands to plaintiff. Held, that the conveyance was void, under 1 R. S. 739, § 147, which declares every grant of lands to be absolutely void if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor. Judgment below affirmed. Christie v. Gage. Opinion by Aнdrews, J.

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poration, and the conveyance was made under the direction of the court. Held, not to prevent the transaction coming within the statute. Ib. [Decided Nov. 13, 1877.]


Order refusing preference in claim against insolvent insurance company.- The petitioner made application to the Supreme Court to have her claim against an insurance company, which was in the hands of a receiver, paid before a distribution of the assets among all the creditors of the corporation. The plaintiff had no statutory right to ask preference for her claim. Held, that an order refusing plaintiff's application did not affect a substantial right and was not appealable. Appeal dismissed. Application of Miller v. Wickham, Receiver. Opinion by Allen J.


1. Review by Court of Appeals of order allowing alimony. While the exercise of the discretion of the court below, in reference to alimony in divorce actions, will not be reviewed in this court, where the facts are such that on general principles of equity a plaintiff is not entitled to demand alimony, the question becomes one of law reviewable in this court. Order below reversed. Collins v. Collins. Opinion by Rapallo, J.

2. Alimony pendente lite: not allowed unless marriage proved or admitted.- Temporary alimony and expenses are not allowable unless the existence of the marital relation is admitted or proved to the satisfaction of the court. Brinkley v. Brinkley, 50 N. Y. 184. Accordingly, where the defendant in answer to the complaint of his wife for divorce set up that they were not married, because at the time the marriage ceremony was performed plaintiff had another husband living, and also that plaintiff had been guilty of adultery, which allegations were not controverted by plaintiff. Held, that alimony pendente lite and expenses should not be allowed. Ib. [Decided Nov. 20, 1877.]


Facts necessary to authorize proceedings to acquire land. - Under the statute providing for the acquirement of land for the construction of a ditch or channel necessary for the purpose of drainage (Laws 1869, chap. 888, § 9), it is provided that application may be made to the court for a commission, etc., when the commissioners cannot agree with the owner of the land upon the compensation and damages to which he is entitled. Held, that the inability to agree and the reasons for such inability are essential to be stated in the petition, and if the reasons be not stated the court acquires no jurisdiction and the proceedings fail. Order below reversed. Matter of application of Marsh v. Appleton. Opinion by Allen, J. [Decided Nov. 27, 1877.]


Issue of new policies in place of lapsed ones: to whom benefit of, inures. - B, having no title to or interest in certain policies upon the life of plaintiff's husband in his possession, which were for plaintiff's benefit, for the purpose of getting title, arranged with the husband without plaintiff's knowledge, to permit the policies to lapse and to take out new policies to B as creditor of the husband. This was done. The old policies were the consideration and inducement of the new policies, which could not have been obtained without the sur

render of the old, and the premiums on the new policies were paid in part by a cash dividend on one of the old ones. Held, that the new policies in equity simply took the place of the old, and the money payable thereon belonged to the party entitled under the old policies. (Story's Eq. Jur., § 1254, etc.; Bunyon's L. Ins. 302; Nesbitt v. Beveridge, 10 Jur. (N. S.) 53; Norwood v. Guerdon, 60 Ill. 253; Chapin v. Fellows, 36 Conn. 132; Lenon v. Phanix L. Ins. Co., 38 id. 294; Dutton v. Wilner, 52 N. Y. 313; Mitchell v. Reed, 61 id. 123.) Judgment below affirmed. Barry v. Brune. Opinion by Earl, J.

[Decided Nov. 20, 1877. Reported below, 8 Hun, 395.]


Assignment of, as security not required to be filed as chattel mortgage.- Leases for years are chattels real and not mere chattels, and the assignment of a lease is not subject to the same rules as are applicable to a bill of sale or a mortgage upon personal property. Accordingly, where an instrument in writing conveying the interest of M. in the stock and fixtures in certain stores, and also the lease of such stores, was given as a mortgage in security for a debt, was not filed as required by the statute (4 Edm. Stat. at L. 435, 436), held, that while it was invalid against the creditors of M., as to the stock and fixtures, it was not so as to the lease, but operated to transfer it. Judgment below reversed. Booth v. Kehoe. Opinion by Miller, J. [Decided Dec. 4, 1877.]


1. Railroad crossing in city: acts of flagman: absence of flagman.- Irrespective of a city ordinance negligence cannot be predicated of an omission to keep a flagman at a street railroad crossing; but when a flagman has been uniformly stationed at a crossing, the negligence of the flagman to give warning and properly discharge his duty, or in absenting himself from his post, is imputable to the railroad company. Judgment below affirmed. Dolan v. President, etc., Deleware & Hudson Canal Co. Opinion by Church, C. J.

2. How far negligence question of law: how far of fact. In reference to the degree of care required in crossing a railroad track at a street crossing it is a general rule that care commensurate with the danger must be exercised, and it is also a general rule that it is the province of the jury and not of the court to determine whether such care has been used. Ib. [Decided Nov. 27, 1877.]


Contributory negligence: burden of proof. - Negligence of a plaintiff, contributing to an injury complained of, is matter of defense, and ordinarily the burden of proving it is on the defendant. Sup. Ct., Pennsylvania, Nov. 5, 1877. Mallory v. Griffey (W. Not. Cas.).

Criminal evidence: admissions: failure of arrested person to contradict assertion of accomplice.- The defendants, Malone and McDermott, were indicted for larceny from the person, of a watch. After their arrest they were searched in the station-house. The watch was found upon McDermott. The officer then in the presence and hearing of Malone asked McDermott how he came by the watch, and McDermott replied that Malone gave it to him. Malone said nothing. The counsel for Malone asked the court to rule that this evidence should have no bearing against

Malone. This the court declined to do, and instructed the jury that it was a question whether the conduct and silence of Malone was an admission of the truth of the answer of McDermott, and if so it was evidence for them to consider, giving it such weight as they thought it deserved, otherwise it was to be rejected in considering the case of Malone. The defendant Malone excepted, and the Supreme Court sustained the exceptions, the rescript being as follows: "No inference against the defendant Malone was warranted by his failure to contradict statements made in his presence while he was in custody." Sup. Jud. Ct., Massachusetts, Jan. 2, 1878. Commonwealth v. Malone.

Criminal law: assault on officer making arrest without a warrant.—The defendant was indicted far an assault

on an officer. He had been taken into custody with

out a warrant, on a charge of drunkenness, and on a trial therefor was acquitted. The assault was committed while he was under arrest for drunkenness, and counsel contended that as he was acquitted of drunkenness, he could not be found guilty of the assault, because at the time the arrest was made the officer was

a trespasser, not having a warrant. In overruling the exceptions the Supreme Court said, "The mere fact that defendant had been acquitted of the 'crime of drunkenness,' which is drunkenness by the voluntary use of intoxicating liquor, was not conclusive evidence that he was not drunk when arrested, nor that the officer was not in the discharge of his duty when he made the arrest." Sup. Jud. Ct., Massachusetts, Jan. 2, 1878. Commonwealth v. Coughlin.

Evidence: admissibility of parol, to vary written contract.- Parol evidence is admissible in an action on a writing, to show that at the execution of the writing a stipulation had been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing was executed, although such evidence may vary and materially change the terms of the contract. Sup. Ct., Pennsylvania, Nov. 12, 1877. Greenwault v. Kohne (W. Not. Cas.).

Highway: right of the owner of adjoining land to temporary use of.-The owner of land adjoining a highway may temporarily occupy the highway by placing building materials thereon, and will only be held liable for injuries resulting from a negligent or unreasonable use of his privilege. Sup. Ct., Pennsylvania, Nov. 5, 1877. Mallory v. Griffey (W. Not. Cas.).

Sale of personal property: cargo to arrive: misrepresentation: scienter. - Defendants, corn merchants in London, received a telegram from their agents at Gibraltar to the effect that a cargo of rye, shipped for defendants at Sulina, had arrived at Gibraltar in good condition. Defendants advertised the cargo for sale, and, on plaintiffs' agent negotiating with them for the purchase of it, showed him the telegram. Plaintiffs thereupon purchased the cargo, which turned out to be rotten, and was sold by plaintiffs at a loss. Defendants did not know whether or not the cargo had been examined by their agents at Gibraltar; but they knew it was not usual to examine cargoes at a British port of call unless an order was sent to the agent there from the owner; and they had sent no such order in this instance. Held (reversing the decision of the Common Pleas Division), that these facts would not support a count in a declaration before the Judicature Acts for false representation, and that the plaintiffs were not entitled to any equitable relief, not claimed in the pleadings, as having suffered loss through a false representation innocently made by the defendants.

English Ct. Appeal, Nov. 16, 1877. Schroeder v. Mendl. (37 L. T. Rep. [N. S.] 452).

Statute of frauds: subsequent part delivery of personal property agreed to be sold. The subsequent delivery of a part of the personal property agreed to be sold under an agreement within the statute of frauds takes the agreement out of the operation of the statute. Sup. Ct., Minnesota, Dec. 13, 1877. Gaslin v. Pinney (N. W. Rep.).



Superseded by bankruptcy: validity of judgment.-A general assignment for creditors, without giving priority, is superseded by proceedings in bankruptcy.

Where, after a general assignment for creditors has been made, a judgment is recovered in the ordinary course of practice, and without collusion between the debtor and creditor, for the purpose of giving priority, such judgment and the levy under it are good, even as against an assignee in bankruptcy subsequently appointed. New York Sup. Ct. Dolson v. Kerr, sheriff, 16 Nat. Bankr. Reg. 405.


Is trustee of his estate until assignee is appointed: may waive demand and notice on bills: beginning suits. -Until an assignee is appointed, the bankrupt is the trustee of his estate for the benefit of his creditors. If he is indorser upon notes or bills which mature before the appointment of an assignee, he may waive demand and notice. Semble, that he may, even without leave of court, begin any suits which are necessary to save the statute of limitations, or are otherwise of immediate urgency, although he cannot, without suit, receive payment. U. S. Dist. Ct., Massachusetts. Ex parte Tremont National Bank; In re Battery, 16 Nat. Bankr. Reg. 397.


Indictment under § 5132, R. S. U. S.: when it will lie, and what it must charge.-An indictment under section 5132, R. S. U. S., will lie before an order of adjudicaAn indictment for obtaining tion in bankruptcy. goods under false pretenses, founded upon the ninth clause of section 5132, need not charge an intent to defraud creditors generally. Such an indictment need not contain the negative averment that the accused was in fact not carrying on business and dealing in the regular course of trade when he obtained credit for goods on false pretenses. U. S. Dist. Ct., E. D. Virginia. United States v. Myers. 16 Nat. Bankr. Reg. 387.


By State court: assignee cannot be interfered with by State court. - A State court has no jurisdiction of an action brought against a trustee (or assignee) in bankruptcy to enjoin the collection of the assets of the bankrupt. The assignee holds the assets as an officer of the court which appointed him, and his possession and management thereof cannot be interfered with by the State courts. Although the assignee may prosecute or defend a suit pending at the time of adjudication, he is not compelled to resort to the State court before which it was pending, but may apply directly to the Federal courts. Sup. Ct., South Carolina. Southern v. Fisher, 16 Nat. Bankr. Reg. 414.


Fund already drawn on.-The bankrupt, nearly a year before the petition was filed, left for collection

with his attorney a note signed by a third person, and subsequently drew several orders upon him payable out of the proceeds thereof. Held, that the holders of the orders were entitled to payment out of such proceeds, in preference to the assignee. U. S. Dist. Ct., Massachusetts. In re Smith, 16 Nat. Bankr. Reg. 399. SET-OFF.


Deposits in bank by debtor to bank: composition: liquidated and unliquidated debts. Upon the bankruptcy of a depositor his deposit becomes a security for the payment of his indebtedness to the bank. Such deposit should be set off against the aggregate debt to the bank, not including any notes upon which the bankrupt is surety, unless the principals are insolA bankrupt in a composition case in which no assignee has been appointed stands in the position of an assignee in respect to set-off. Semble, that if the bank holds mere contingent debts or liabilities, or a claim for unliquidated damages arising upon contract, it may retain the deposit until the amount of its provable debt can be ascertained, and may then use it as a set-off. U. S. Dist. Ct., Mass. Ex parte How. Nat. Bank; In re North, 16 Nat. Bankr. Reg. 420.


To property of bankrupt: assignee takes subject to legal claims. The assignee takes the property of the bankrupt as an attaching creditor would take it, subject to all legal claims upon it. The bankrupt made a contract with S. & Co. to manufacture hides into leather for them, the hides to be purchased with the proceeds of drafts upon S. & Co.; the drafts were discounted at a bank, and the proceeds thereof placed to the credit of the bankrupt in his general account; the hides purchased were paid for by checks upon such account. Held, that the hides were purchased for S. & Co. and became their property; that it is not necessary that the agent should pay out the identical bank notes he receives from his principal. Where some of the hides were purchased with the proceeds of drafts which S. & Co. refused to accept, their title to such hides is not affected by such fact, but they become debtors to the estate or to the bank advancing the money. The title to the leather, when completed, passes under the arrangement for the purchase of the hides. U. S. Circ. Ct., Vermont. Safford v. Burgess, 16 Nat. Bankr. Reg. 402.



Possession essential to a pledge.-Possession by the pledgee is essential to a pledge; actual possession when practicable; constructive possession when actual possession is impracticable. Seymour v. Colburn. Opinion by Ryan, C. J.

DECEMBER 6, 1877.*

Finney, 10 Wis. 388; Craker v. Railway Co., 36 id. 657;
Bass v. Railway Co., 39 id. 636.) Bass v. C. & N. W.
Railway Co. Opinion by Lyon, J.

* From O. M. Conover, State Reporter, and to appear in 42 Wisconsin Reports.

2. Retention of servant in employ after notice of tortious acts: punitory damages.—Where a railroad company retained a brakeman in its service, and even promoted him to a position of greater responsibility, after notice of tortious acts committed by him against a passenger, for which he would be liable in punitory damages, there was no error in submitting to the jury, in an action against the company, the question whether it had ratified such acts. Ib.

3. Violent expulsion of passenger from railroad car. -Plaintiff was a passenger upon a train of the defendant company, and, there being no vacant seat in any passenger car, except the smoking car and the rear or ladies' car, he entered the latter peaceably, without being forbidden or barred from entering it by any officer or agent of the company; while he was there, and while the train was in motion, a brakeman seized him, and, without requesting him to leave the car, or offering him a seat elsewhere, forcibly ejected him from the car, upon the platform thereof, in a rude and violent manner, though without any intent to inflict bodily injury upon him, and using no more force than was necessary to get him out of the car. Held, that the injury was one which, in an action against the brakeman, would sustain a verdict for punitory damages. Ib.

4. When notice to conductor of train notice to the railway company. - In case of the misconduct of a brakeman toward a passenger on a railroad train, immediate notice to the conductor of the train (by whomsoever given) is notice to the company; and if the conductor or other officer of the company, after such notice, disbelieves the charge made against the brakeman, still the retention of the latter in its service by the company will be at its peril of the fact. Ib.

5. Service of complaint notice of facts stated therein. -A verified complaint, duly served, in an action against the company for the misconduct of its servant, is notice of such misconduct; and where, after such service, the servant is retained and promoted, these facts may be put in evidence to show ratification of his act. Ib.


Rights of action ex delicto, not.-"Things in action," in the statutory definition of personal property (subd. 14, § 1, ch. 5, R. S.), comprise only such rights of action as may be the subject of sale and transfer, and not mere rights of action ex delicto, for personal wrongs; and the latter are not included in the personal property owned by a woman at the time of her marriage, which (by § 2, ch. 95, R. S.) continues to be her sole and separate property after marriage. Gibson v. Gibson. Opinion by Ryan, C. J.



1. Railroad company seizing land without having ac

1. Liability of master for acts of servant.-A princi- quired title liable in trespass: waiver.—Where a rail

pal is liable in compensatory damages for injuries done by his servant acting within the scope of his employment; and, if the act is such that the servant would be liable in punitory damages, if the action were against him, the principal is liable in damages of that character in case he authorized the act or subsequently ratified it, but not otherwise. (M. & M. R. R. Co. v.

way company, without the consent of the owner, and without having acquired a right to the land in the manner provided by statute, takes possession of land for which it its liable to make compensation (in this case land forming part of a public street, but the fee of which was in the plaintiff), it is liable in an action of trespass; and the neglect of the owner to proceed by injunction to restrain the company from constructing its road on such land is not a waiver of his

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