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have not been assigned for error; and if they had stand upon a different footing, as such agreements been, it would not have benefited the defendant, as may, if not within the statute of frauds, have the efthe questions presented fall within the rules already fect to eularge the time of performance, or may vary sufficiently explained.

any other of its terms, or may waive and discharge it Nothing remains for remark except to advert very altogether. (Emerson v. Staler, 22 How. 41; Goss v. briefly to certain irregularities which appear in the Nugent, 5 Barn. & Ad. 65; Nelson v. Boynton, 3 Metc. proceedings. Judgment was rendered in the first suit 402; Harvey v. Grabbam, 5 Ad. & El. 61; Leonard v. before the parties went to trial in the second, and yet Vredenburg, 8 Johns. 39; Chit. on Con. [10th ed.] 105). Ib the defendants were allowed to file eight bills of excep- 3. Express stipulations and implied promises.- Extions, which purport to be applicable to each of the press stipulations cannot in general be set aside or two cases; and the judgment in each case is removed varied by implied promises,or, in other words, a promise here by one writ of error, though the transcript does is uot implied where there is an express written connot show that the two cases were ever consolidated. tract, unless the express coutract has been rescinded or Such proceedings are palpably irregular; but inasmuch abandoned or has been varied by the consent of the as they are not the subject of objection by either parties. Hence the rule is that if there be an express party, the court has decided to exercise jurisdiction written contract between the parties, the plaintiff, in and dispose of the controversy. Separate judgments an action to recover for work and labor done, or for having been entered in the court of original jurisdic-money paid, pust declare upon the written agreement tion, the judgment rendered here must be separately so long as the special agreement remains in force and applied in the court below.

unrescinded, as he cannot recover, under such circumJudgment affirmed.

stances, upon a quantum meruit. (1 Story on Cont. [5th ed.], $ 18; Selvay v. Foy, 5 Mees. & Wels. 83; Creigh

ton v. Toledo, 18 Ohio St. 451; W'eston v. Davis, 24 Me. UNITED STATES SUPREME COURT ABSTRACT.

375; Whiting v. Sullivan, 7 Mass. 109; Merrill v. RuilCONSTITUTIONAL LAW.

road, 16 Wend. 588; Glacius v. Black, 50 N. Y. 150; When Constitution does not affect previous statutes.

Bain v. Miller, 4 Taunt. 743; Inchbald v. Railuay, 17 The Constitution of Missouri, taking effect July 4,

C. B. [N. S.] 733; Bartholomew v. Markwick, 15 id. 711; 1865, provided that “the general assembly shall not

Touissaint v. Martinnant, 2 Term, 105; Culler v. Powell, authorize," etc., *

"unless two-thirds of the 6 id. 324; Fergueson v. Carrington, 9 B. & C. 59; Denqualified voters of such county, city, or town, at a

nett v. Atherton, L. R., 7 Q. B. 327; Mayor v. Eschbach, regular or special election to be held therein, shall as- 17 Md. 283.) Ib. sent thereto.” Held, to apply only to future acts, and 4. Authority conferred by law upon officials must be, not to past ones. (State v. Macon County Court, 41 Mo. taken notice of: - Individuals as well as courts must 453; State v. Greene County, 54 id. 540; Henry County take notice of the extent of the authority conferred v. Nicolay, U. S. Sup. Ct. Mss.) Judgment of Circuit

by law upon a person acting in an official capacity. Court, W. D. Missouri, affirmed. County of Macon,

and the rule applies in such a case that ignorance of plaintiff in error, v. Shores. Opinion by Swayne, J.

the law furnishes no excuse for any mistake or wrong

ful act. (State v. Hayes, 52 Mo. 580; Delafield v. State, CONTRACT.

26 Wend. 22; People v. Bank, 24 id. 433; Mayor v. 1. Contract made with government: provisions of act

Reynolds, 20 Md. 11; Whitside v. U. S., 3 Otto, 257.) Ib. authorizing, must be followed: alteration of, without anthority. – By an act of Congress, provision was made

EVIDENCE. for the erection of a public building under the direc- Internal revenue tax: secondary: when testimony of tion of the Secretary of the Treasury. Plaintiff con- witnesses not admissible. — In an action to recover, tracted to furnish material for such building of a cer- from a collector of internal revenue, the amount paid tain kind, the contract providing that no departure upon a tax for “1,350 barrels of beer sold and removed from its condition should be made without “the writ- from plaintiff's brewery without proper stamps," ten consent of the Secretary of the Treasury.” Plain- plaintiffs offered to prove by witnesses on the stand tiff furnished under a subsequent oral agreement with that, from the date at which the internal revenue act the assistant superintendent having charge of the erec- of 1866 went into effect, until the assessment comtion of the building, material better than that called for plained of was made, “no beer was sold or removed by the original contract. Held, that the assistant from their brewery for consumption or sale except in superintendent had no authority to eularge the terms barrels or parts of barrels which were all duly stamped of the original contract, and plaintiff could not claim with an internal revenue stamp

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as required compensation for the value of the material furnished, by the act of Congress; " that they “had made their but only the contract price for the material he was re- monthly returns to the collector regularly until and quired by the contract to furnish. Decree of Court including the month of December, 1873; that there of Claims affirmed. Hawkins, appellant, v. United was no under-statement or under-valuation in either States. Opinion by Clifford, J.

of said returns of the quantity of beer brewed, or of 2. Verbal agreements altering written contract: effect beer sold or removed from their brewery for consumpof.-Verbal agreements between the parties to a writ- tion or sale, and that neither of the returns was false ten contract, made before or at the time of the execu- or fraudulent." The books required by the revenue tion of the contract, are in general inadmissible to law to be kept by a brewer were not produced, and no vary its terms or to affect its construction, the rule attempt to account for their absence, nor any claim of being that all such verbal agreements are to be con- defective entries in plaintiff's returns was made. Held, sidered as merged in the written instrument. But that the evidence was not admissible. Judgment of oral agreements subsequently made on a new and val- Circuit Court, E. D., Pennsylvania, affirmed. Berguable consideration, and before the breach of the con- doll, plaintiff in error, v. Pollock. Opinion by Waite, tract, in cases not falliug within the statute of frauds, 1 C. J.

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LIFE INSURANCE.

he had been captain of a tug-boat, and was familiar Construction of contract: premium notes: paid-up

with the making up of tows; that he was a pilot and policy. – In a policy of life insurance, and in the agree

had towed vessels on Long Island Sound, and was ment for the same (the premiums upon which were

familiar with the wates of Chesapeake Bay, was asked: payable partly in money, and partly by note), it was

“With your experience, would it be safe or prudent provided that the amount of the note given for the for a tug-boat on Chesapeake Bay, or any other wide desiguated part of the annual premium, was to be “ water, to tug three boats abreast, with a high wind ?” permanent loan from the company, bearing interest

Held, a proper question. Clark v. Baird, 9 N. Y. 183; at the rate of seven per cent until paid by dividends." Bears v. Copely, 10 id. 93; Harris v. Panama R. R. The part of the premium for which the note was Co., 4 Jones & Spencer, 373; Jackson v. N.Y. C. R. R. given, was described as “the amount of premium Co , 2 T. & C. 653; Moore v. Westcoult, 9 Bosw. 558; loaned this year," and the policy provided that the Price v. Hartshorn, 44 N. Y. 94; Walsh v. Washington amount of the note unpaid, if any, when the sum se

Marine Ins. Co., 32 id. 427. Judgment of Circuit cured by the policy became payable, was to be de- Court, E. D., Pennsylvania, affirmed. Eastern Transducted from the amount of the insurance money to be

portation Line, plaintiff in error, v. Hope. Opinion by paid. The policy declared that in case of a paid-up Hunt, J. policy being taken, the amount thereof should be de- 2. Tug-boat towing barge: what care required of termined by the sum of the premiums paid in cash. tug owner.- :- In reply to a request by defendant to Held, that when a paid-up policy was taken, the charge, the court answered: “By the contract between amount of the notes could not be deducted from the the parties the defendants undertook to tow the plainsum to which the old policy showed the policy-holder tiff's barge from Jersey City to New Haven. As a to be entitled, but the debt of the notes would be a necessary incident of this engagement the defendants lien against the new policy, payable, with interest, were entitled and were bound to assume supreme conwhen that should become due. Decree of Circuit trol and direction of the plaintiff's boat, and of the Court, E. D. Missouri, affirmed. Brooklyn Life Ins. persons in charge of her, so far as was necessary to Co., appellant, v. Dutcher. Opinion by Swayne, J. enable them to fulfill their engagement, and they were

bound to exercise such degree of diligence and care as MUNICIPAL BONDS.

a prudent and skillful performance of the service for 1. Evidence of good faith of holder, when admissible. which they stipulated would require.Held, no error. - In an action upon a negotiable coupou belonging to (Alexander v. Greene, 3 Hill, 9.) Ib. a municipal bond, the petition averred that plaintiff 3. Error in request to charge. - If a request to charge was the bona fide holder of the coupon; this was de- contains one unsound proposition, it is not error to renied by the answer. Held, that plaintiff was entitled fuse to make the charge, although it contains many to show by affirmative proof that he was a bona fide sound propositions. (Bearer v. Taylor, 93 U. S. 46.) holder. Judgment of Circuit Court, W. D. Missouri, Ib. affirmed. County of Macon, pluintij in error, v. 4. Neglecting endangered property to save life not negShores. Opinion by Swayne, J.

ligence contributing to loss of property.- At the time 2. Nul tiel corporation, when plea of, not allowed. - of the accident the boat of the plaintiff was in danger It was objected by defeudant that the corporation of sinking; he believed the danger to be imminent, for whose benefit the bond was issued was not organ- and to save his own life jumped from his boat to the ized within the time limited by the charter. Held, tug, leaving his boat without the care or control of wavailing. It cannot be shown in defense to a suit of

any one on board of his boat. Held, that plaintiff was a corporation, that the charter was obtained by fraud; not guilty of contributory negligence so as to defeat a neither can it be shown that the charter has been for

recovery. Ib. feited by misuser or nonuser. Advantage can only be taken of such forfeiture by process on behalf of the

COURT OF APPEALS ABSTRACT. State, instituted directly against the corporation for the purpose of avoiding its charter, and individuals

ADVERSE POSSESSION. cannot avail themselves of it in collateral suits until

1. What is to render void conveyance of lands held it be judicially declared. (Kaiser v. Trustees of Bre

adversely.- A., having a life estate in lands, conveyed men, 16 Mo. 90; Smith v. Conty of Clarke, 54 id. 58;

them in fee to defendaut who took possession and Olcott v. Bymum, 17 Wall. 58.) Ib.

asserted title to the fee. After the death of A., the 3. Presumption of authority to issue bonds. - Where

remaindermau conveyed the lands to plaintiff. Held, a corporation has power under any circumstances to

that the conveyance was void, under 1 R. S. 739, $ 147, sue negotiable securities, the bona fide taker has a

which declares every grant of lands to be absolutely right to presume they were issued under circumstances

void if, at the time of the delivery thereof, such lands which gave the requisite authority, and that they are

shall be in the actual possession of a person claiming no more liable to be impeached for any infirmity, in

under a title adverse to that of the grantor. Judgment the hands of the holder, than any other commercial

below affirmed. Christie v. Gage. paper. (Supervisors v. Schenck, 5 Wall. 784; Herne v.

Opinion by An

drews, J. Nichols, 1 Salk. 289; 'Merchants' Bank v. State Bank, 10 Wall. 646; Steamboat Company v. McCutchen and

2. Rule of title as to landlord and tenant: when not apCollins, 13 Penn. St. 13.) Ib.

plicable. The rule that a tenant and those claiming

under him cannot dispute the title of the landlord has NEGLIGENCE.

no application to the relation existing between the 1 Evidence of experts: where admissible. -- In an grantee in fee of a tenant for life and the remainderaction to recover for the loss of plaintiff's barge, which man or reversioner. (Jackson v. Harsen, 3 Cow. 323.) Ib. defendants undertook to tow through Long Island 3. Church corporation conveying lands held aulversely. Sound, a witness who had testified that for many years - The remainderman in this case was a church cor

LEASE.

poration, and the conveyance was made under the render of the old, and the premiums on the new polidirection of the court. Held, not to prevent the trans- cies were paid in part by a cash dividend on one of the action coming within the statute. Ib.

old ones. Held, that the new policies in equity simply [Decided Nov. 13, 1877.]

took the place of the old, and the money payable

thereon belonged to the party entitled under the old APPEALABLE ORDER.

policies. (Story's Eq. Jur., $ 1254, etc.; Bunyon's L. Order refusing preference in claim against insolvent

Ins. 302; Nesbitt v. Beveridge, 10 Jur. (N. S.) 53; Norinsurance company.- The petitioner made application

wood v. Guerdon, 60 I11. 253; Chapin v. Fellou's, 36 ( onn. to the Supreme Court to have her claim against an in

132; Lenon v. Phænix L. Ins. Co., 38 id. 294; Dutton v. surance company, which was in the hands of a receiver,

Wilner, 52 N. Y. 313; Mitchell v. Reed, 61 id. 123.) paid before a distribution of the assets among all the

Judgment below affirmed. Barry v. Brune. Opinion creditors of the corporation. The plaintiff had no

by Earl, J. statutory right to ask preference for her claim. Held,

[Decided Nov. 20, 1877. Reported below, 8 Hun, 395.] that an order refusing plaintiff's application did not affect a substantial right and was not appealable. Appeal dismissed. Application of Miller v. Wickham, Assignment of, as security not required to be filed as Receiver. Opinion by Allen J.

chattel mortgage.- Leases for years are chattels real

and not mere chattels, and the assignment of a lease is DIVORCE.

not subject to the same rules as are applicable to a bill 1. Review by Court of Appeals of order allowing ali

of sale or a mortgage upon personal property. Accordmony. While the exercise of the discretion of the

ingly, where an instrument in writing conveying the incourt below, in reference to alimony in divorce actions,

terest of M. iu the stock and fixtures in certain stores, will not be reviewed in this court, where the facts are

and also the lease of such stores, was given as a mortsuch that on general principles of equity a plaintiff is

gage in security for a debt, was not filed as required by not entitled to demand alimony, the question becomes

the statute (4 Edm. Stat. at L, 435, 436), held, that one of law reviewable in this court. Order below re

while it was invalid against the creditors of M., as to versed. Collins v. Collins. Opinion by Rapallo, J.

the stock and fixtures, it was not so as to the lease, but 2. Alimony pendente lite : not allowed unless mar

operated to transfer it. Judgment below reversed. riage proved or admitted.— Temporary alimony and ex

Booth v. Kehoe. Opinion by Miller, J. penses are not allowable unless the existence of the

[Decided Dec. 4, 1877.] marital relation is admitted or proved to the satisfaction of the court. Brinkley v. Brinkley, 50 N. Y. 184.

NEGLIGENCE. Accordingly, where the defendant in answer to the 1. Railroad crossing in city: acts of flagman: absence complaint of his wife for divorce set up that they were of flugman.- Irrespective of a city ordinance neglinot married, because at the time the marriage cere- gence cannot be predicated of an omission to keep a mony was performed plaintiff had another husband

flagman at a street railroad crossing; but when a flagliving, and also that plaintiff had been guilty of adul- man has been uniformly stationed at a crossing, the tery, which allegations were not controverted by plain- | negligence of the flagman to give warning and properly tiff. Held, that alimony pendente lite and expenses discharge his duty, or in absenting himself from his should not be allowed. Ib.

post, is imputable to the railroad company. Judgment [Decided Nov. 20, 1877.)

below affirmed. Dolan v. President, etc., Deleware &

Hudson Canal Co. Opinion by Church, C. J.
EMINENT DOMAIN.

2. How far negligence question of law: how far of Facts necessary to authorize proceedings to acquire

fact.- In reference to the degree of care required in land. — Under the statute providing for the acquire

crossing a railroad track at a street crossing it is a genment of land for the construction of a ditch or chan

eral rule that care commensurate with the danger must nel necessary for the purpose of drainage (Laws 1869,

be exercised, and it is also a general rule that it is the chap. 888, $ 9), it is provided that application may be

province of the jury and not of the court to determine made to the court for a commission, etc., when the

whether such care has been used. Ib. commissioners cannot agree with the owuer of the land

[Decided Nov. 27, 1877.] 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

NOTES OF RECENT DECISIONS, the petition, and if the reasons be not stated the court acquires no jurisdiction and the proceedings fail.

Contributory negligence: burden of proof.– NegliOrder below reversed. Matter of application of Marsh

gence of a plaintiff,contributing to an injury complained V. Appleton. Opinion by Allen, J.

of, is matter of defense, and ordinarily the burden of [Decided Nov. 27, 1877.]

proving it is on the defendant. Sup. Ct., Pennsylva

nia, Nov. 5, 1877. Mallory v. Griffey ( W. Not. Cas.). LIFE INSURANCE.

Criminal evidence: admissions: failure of arrested Issue of new policies in place of lapsed ones: to whom person to contradict assertion of accomplice.- The debenefit of, inures. — B, having no title to or interest in fendants, Malone and McDermott, were indicted for certain policies upon the life of plaintiff's husband in larceny from the person, of a watch. After their his possession, which were for plaintiff's benefit, for arrest they were searched in the station-house. The the purpose of getting title, arranged with the husband watch was found upon McDermott. The officer thell without plaintiff's knowledge, to permit the policies to in the presence and hearing of Malone asked McDerlapse and to take out new policies to B as creditor of mott how he came by the watch, and McDermott the husband. This was done. The old policies were replied that Malone gave it to him. Malone said noththe consideration and inducement of the new policies, ing. The counsel for Malone asked the court to rule which could not have been obtained without the sur. that this evidence should have no bearing against

Malone. This the court declined to do, and instructed | English Ct. Appeal, Nov. 16, 1877. Schroeder v. Mendl.
the jury that it was a question whether the conduct (37 L. T. Rep. [N. S.] 452).
and silence of Malone was an admission of the truth Statute of frauds: subsequent part delivery of personal
of the answer of MoDermott, and if so it was evidence property agreed to be sold.— The subsequent delivery of
for them to consider, giving it such weight as they a part of the personal property agreed to be sold under
thought it deserved, otherwise it was to be rejected in an agreement within the statute of frauds takes the
considering the case of Malone. The defendant Ma- agreement out of the operation of the statute. Sup.
lone excepted, and the Supreme Court sustained the Ct., Minnesota, Dec. 13, 1877. Gaslin v. Pinney (N.
exceptions, the rescript being as follows: “No infer- W. Rep.).
ence against the defendant Malone was warranted
by his failure to contradict statements made in his RECENT BANKRUPTCY DECISIONS.
presence while he was in custody." Sup. Jud. Ct.,

ASSIGNMENT FOR CREDITORS.
Massachusetts, Jan. 2, 1878. Commonwealth v. Malone.
Criminal law: assault on officer making arrest without

Superseded by bankruptcy: validity of judgment.-A a warrant.- The defendant was indicted far an assault general assignment for creditors, without giring prion an officer. He had been taken into custody with-ority, is superseded by proceedings in bankruptcy. out a warrant, on a charge of drunkenness, and on a

Where, after a general assignment for creditors has trial therefor was acquitted. The assault was com

been made, a judgment is recovered in the ordinary mitted while he was under arrest for drunkenness, and

course of practice, and without collusion between the counsel contended that as he was acquitted of drunk- debtor and creditor, for the purpose of giving priority, enness, he could not be found guilty of the assault,

such judgment and the levy under it are good, even as because at the time the arrest was made the officer was

against an assignee in bankruptcy subsequently apa trespasser, not having a warrant. In overruling the pointed. New York Sup. Ct. Dolson v. Kerr, sherill, exceptions the Supreme Court said, “The mere fact

16 Nat. Bankr. Reg. 405. that defendant bad been acquitted of the 'crime of

BANKRUPT. drunkenness,' which is drunkenness by the voluntary

Is trustee of his estate until assignee is appointed : use of intoxicating liquor, was not conclusive evidence may waive demand and notice on bills : beginning suits. that he was not drunk when arrested, nor that the - Until an assignee is appointed, the bankrupt is the officer was not in the discharge of his duty when he trustee of his estate for the benefit of his creditors. made the arrest." Sup. Jud. Ct., Massachusetts, Jan. If he is indorser upon notes or bills which mature be2, 1878. Commonwealth v. Coughlin.

fore the appointment of an assignee, he may waive Evidence: admissibility of parol, to vary written con- demand and notice. Semble, that he may, even withtract.- Parol evidence is admissible in an action on a

out leave of court, begin any suits which are necessary writing, to show that at the execution of the writing to save the statute of limitations, or are otherwise of a stipulation had been entered into, a condition an- immediate urgency, although he cannot, without suit, nexed, or a promise made by word of mouth, upon the receive payment. U. S. Dist. Ct., Massachusetts. Ex faith of which the writing was executed, although such parte Tremont National Bank ; In re Battery, 16 Nat. evidence may vary and materially change the terms of Bankr. Reg. 397. the contract. Sup. Ct., Pennsylvania, Nov. 12, 1877.

FALSE PRETENSES. Greenwault v. Kohne (W. Not. Cas.).

Indictment under $ 5132, R. S. U. S. : when it will lie, Highway: right of the owner of adjoining land to tem- and what it must charge.-An indictment under section porary use of.—The owner of land adjoining a highway 5132, R. S. U. 8., will lie before an order of adjudicamay temporarily occupy the highway by placing build- tion in bankruptcy. An indictment for obtaining ing materials thereon, and will only be held liable for goods under false pretenses, founded upon the ninth injuries resulting from a negligent or unreasonable use clause of section 5132, need not charge an intent to of his privilege. Sup. Ct., Pennsylvania, Nov. 5, 1877. defraud creditors generally. Such an indictment need Mallory v. Griffey (W. Not. Cas.).

not contain the negative averment that the accused Sale of personal property: cargo to arrive: misrepre. was in fact not carryiug on business and dealing in the sentation : scienter. - Defendants, corn merchants in regular course of trade when he obtained credit for London, received a telegram from their agents at goods on false pretenses. U. S. Dist. Ct., E. D. VirGibraltar to the effect that a cargo of rye, shipped for ginia. United States v. Myers. 16 Nat. Bankr. Reg. 387. defendants at Sulina, had arrived at Gibraltar in good

JURISDICTION. condition. Defendants advertised the cargo for sale, and, on plaintiffs' agent negotiating with them for the By State court: assignee cannot be interfered with by purchase of it, showed him the telegram. Plaintiffs State court. – A State court has no jurisdiction of an thereupon purchased the cargo, which turned out to action brought against a trustee (or assignee) in bankbe rotten, and was sold by plaintiffs at a loss. Defend-ruptcy to enjoin the collection of the assets of the ants did not know whether or not the cargo had been bankrupt. The assignee holds the assets as an officer examined by their agents at Gibraltar; but they knew of the court which appointed him, and his possession it was not usual to examine cargoes at a British port and management thereof cannot be interfered with by of call unless an order was sent to the agent there

the State courts. Although the assignee may prosefrom the owner; and they had sent no such order in cute or defend a suit pending at the time of adjudicathis instance. Held (reversing the decision of the tion, he is not compelled to resort to the State court Common Pleas Division), that these facts would not

before which it was pending, but may apply directly support a count in a declaration before the Judicature

to the Federal courts. Sup. Ct., South Carolina. Acts for false representation, and that the plaintiffs Southern v. Fisher, 16 Nat. Bankr. Reg. 414. were not entitled to any equitable relief, not claimed

PREFERRED CLAIM, in the pleadings, as having suffered loss through a false Fund already drawn on.— The bankrupt, nearly a representation innocently made by the defendants. year before the petition was filed, left for collection

vent.

TITLE.

with his attorney a note signed by a third person, and Finney, 10 Wis. 388; Craker v. Railway Co., 36 id. 657; subsequently drew several orders upon him payable Bass v. Railway Co., 39 id. 636.) Bass v. C. & N. W. out of the proceeds thereof. Held, that the holders of Railway Co. Opinion by Lyon, J. the orders were entitled to payment out of such pro- 2. Retention of servant in employ after notice of torceeds, in preference to the assignee. U. S. Dist. (t., tious acts : punitory damages.-Where a railroad comMassachusetts. In re Smith, 16 Nat. Bankr. Reg. 399. pany retained a brakeman in its service, and even proSET-OFF.

moted him to a position of greater responsibility, after Deposits in bank by debtor to bank: composition: notice of tortious acts committed by him against a liquidated and unliquidated debts. -- L'pon the bank- passenger, for which he would be liable in punitory ruptcy of a depositor his deposit becomes a security damages, there was no error in submitting to the jury, for the payment of his indebtedness to the bank. in an action against the company, the question Such deposit should be set off against the aggregate whether it had ratified such acts. Ib. debt to the bank, not including any notes upon which 3. Violent expulsion of passenger from railroad car. the bankrupt is surety, unless the principals are insol- -Plaintiff was a passenger upon a train of the defend

A bankrupt in a composition case in which no ant company, and, there being no vacaut seat in any assignee has been appointed stands in the position of

passenger car, except the smoking car and the rear or an assignee in respect to set-off. Semble, that if the ladies' car, he entered the latter peaceably, without bank holds mere contingent debts or liabilities, or a

being forbidden or barred from entering it by any claim for unliquidated damages arising upon contract,

officer or agent of the company; while he was there, it may retain the deposit until the amount of its prov

and while the train was in motion, a brakeman seized able debt can be ascertained, and may then use it as a

him, and, without requesting bim to leave the car, or set-off. U. S. Dist. Ct., Mass. Ex parte How. Nat. offering him a seat elsewhere, forcibly ejected him Bark; In re North, 16 Nat. Bankr. Reg. 420.

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 To property of bankrupt: assignee takes subject to legal claims. — The assignee takes the property of the

was necessary to get him out of the car. Held, that

the injury was one which, in an action against the bankrupt as an attaching creditor would take it, sub

brakeman, would sustain a verdict for punitory damject to all legal claims upon it. The bankrupt made a contract with S. & Co. to manufacture hides into ages. Ib.

4. When notice to conductor of train notice to the leather for them, the hides to be purchased with the proceeds of drafts upon S. & Co.; the drafts were dis railway company.- In case of the misconduct of a counted at a bank, and the proceeds thereof placed to

brakeman toward a passenger on a railroad train, imthe credit of the bankrupt in his general account; the

mediate notice to the conductor of the train (by whomhides purchased were paid for by checks upon such

soever given) is notice to the company; and if the conaccount. Held, that the hides were purchased for S.

ductor or other officer of the company, after such no& Co. and became their property; that it is not neces

tice, disbelieves the charge made against the brakesary that the agent should pay out the identical bank

man, still the retention of the latter in its service by notes he receives from his principal. Where some of

the company will be at its peril of the fact. Ib. the hides were purchased with the proceeds of drafts

5. Service of complaint notice of fucts stated therein. which S. & Co. refused to accept, their title to such

-A verified complaint, duly served, in an action hides is not affected by such fact, but they become

against the company for the misconduct of its serdebtors to the estate or to the bank advancing the

vant, is notice of such misconduct; and where, after money. The title to the leather, when completed,

such service, the servant is retained and promoted, passes under the arrangement for the purchase of the

these facts may be put in evidence to show ratification hides. U. S. Circ. Ct., Vermont. Safford v. Burgess,

of his act. Ib.

PERSONAL PROPERTY. 16 Nat. Bankr. Reg. 402.

Rights of action ex delicto, not.-" Things in action,"

in the statutory definition of persoual property (subd. RECENT AMERICAN DECISIONS.

14, § 1, ch. 5, R. S.), comprise ouly such rights of action

as may be the subject of sale and transfer, and not SUPREME COURT OF WISCONSIN DECEMBER 6, 1877.*

mere rights of action ex delicto, for personal wrongs;

and the latter are not included in the personal propPossession essential to a pledge.-Possession by the erty owned by a woman at the time of her marriage, pledgee is essential to a pledge; actual possession when which (by $ 2, ch. 95, R. S.) continues to be her sole practicable; constructive possession when actual pos- and separate property after marriage. Gibson v. Gibsession is impracticable. Seymour v. Colburn. Opin- son. Opinion by Ryan, C. J. ion by Ryan, C. J.

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

1. Railroad company seizing land without having acpal is liable in compensatory damages for injuries done

way company, without the consent of the owner, and by his servant acting within the scope of his employ

without having acquired a right to the land in the ment; and, if the act is such tbat the servant would

manner provided by statute, takes possession of be liable in punitory damages, if the action were

land for which it its liable to make compensation (in against him, the principal is liable in damages of that

this case land forming part of a public street, but the character in case he authorized the act or subsequently

fee of which was in the plaintiff), it is liable in an acratified it, but not otherwise. (M. & M. R. R. Co. v.

tion of trespass; and the neglect of the owner to pro* From 0. M. Conover, State Reporter, and to appear in ceed by injunction to restraiu the company from con42 Wisconsin Reports.

structing its road on such land is not a waiver of his

BAILMENT.

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