plaintiff was entitled, might allow him the amount of the money advanced on the stock
with interest, or the amount of the market value of the stock at the date of the loan
with interest (if they deemed it proper to allow interest), the amount allowed, however,
not to exceed the amount of the money loaned with interest, if the value of the stock
should be greater than the loan and interest. Tome v. Parkersburg Branch R. R. Co.
1. Held, that the sureties upon the bond of a cashier of a national bank were not liable
to the directors of the bank for losses caused by the defalcation of the cashier, where
the sureties were misled as to the condition and management of the bank by the pub-
lication of reports required by the national currency act, and the bond was entered into
subsequent to and the defalcation occurred before the publication of the reports.
Graves v. Lebanon National Bank, 59.
2. It seems that the publication of the reports after the sureties had entered upon the
bond did not estop the directors to allege the existence of facts that could be estab-
lished only by proving the falsity of the reports. Ib.
PROMISSORY NOTE.
See BILLS AND Notes, 1, 2.
PUBLIC OFFICER.
See INJUNCTION, 4.
Where a "sale" at auction is announced to be "positive" it is an act of fraud on the
part of the vendor, or his agent, to employ by-bidders to keep up the price for his own
benefit. Walsh v. Barton, 341.
1. The publication of a time-table, in common form, imposes upon a railroad company
the obligation to use due care and skill to have the trains arrive and depart at the pre-
cise moments indicated in the table; but it does not import an absolute and uncondi-
tional engagement for such arrival and departure, and does not make the company
liable for want of punctuality which is not attributable to their negligence. Gordon v.
Manchester & Lawrence R. R. 8.
2. G. purchased of the M. & L. R. R. a season ticket from S., an intermediate station to
M. The railroad company published a time-table, in common form, upon which a
train was advertised as leaving L. at 8.27 A. M., leaving S. at 8.45, and arriving at M.
at 9.35 A. M. G. was at S. depot in season to take this train, but the train ran by S.
without stopping. In an action of assumpsit, brought by G. against the railroad
company to recover damages for their failure to transport him seasonably to M., the
railroad company offered to prove that the road was suitably equipped for transporting
the usual travel, and for accommodating the excess ordinarily to be anticipated from
extraordinary occasions; that, on the morning in question, an extraordinary, unusual,
and unexpected number of persons appeared at L. to take passage, and there, and at
other stations before reaching S., so completely filled and overloaded the cars that it
would have been dangerous to have admitted more passengers on the train; that at S.
there were, besides the plaintiff, a large number of persons waiting for transportation,
whom it would have been impossible to have taken into the already overloaded cars;
that the railroad company could not have discriminated as to whom they would take or
decline to take, even if they had had the means to transport any of them; that the train
consisted of eighteen passenger cars and one baggage car, and that, if the train had
stopped at that station, being on an up grade, it would have been impossible to have
started it; that the railroad company had no reason to expect that such an unusual
number of persons would apply for transportation on that morning; and that, on the
arrival of the train at M., and as soon as the same could be done with safety to the
travelling public, they sent back the train to S. to bring the plaintiff, and all other
persons desiring transportation, to M. Held, that the railroad company were not lia-
ble, if they had done all that due care and skill could do to transport the plaintiff pune-
tually; and that the proposed evidence was admissible, as tending to show that the
failure to transport the plaintiff was not attributable to negligence on the part of the
railroad company. Ib.
3. Discussion of the mode of assessing railroads, and especially of the manner prescribed
by the statutes of California. Huntington v. Cent. Pac. R. R. Co. 94.
4. The power to purchase land, conferred upon a railroad company by section 14 of the
Ohio statute of February 11, 1848 (S. & C. 273, note), is not limited to the acquisition
of such lands as may be necessary for operating or maintaining its road.
Walsh v.
Barton, 341.
5. If, in making a purchase of real estate, the company abuse the power conferred upon
it by said section, still, after resale and conveyance, the title becomes indefeasible in
the hands of its vendee. Ib.
6. A mortgage executed by a railroad company on "the road" of the company,
"whether made or to be made, acquired or to be acquired, and all property, real or
personal," of the company, "whether now owned or hereafter to be acquired, used, or
appropriated for the operating or maintaining the said road," is not a lien upon real
estate of the company, then owned or afterward acquired, which has not been used or
appropriated for operating or maintaining the road. Ib.
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See ASSESSMENT; COMMON CARRIER; EVIDENCE, 3, 4, 5, 6; MASTER AND SER-
VANT; NEGLIGENCE, 1, 2, 4, 5, 6, 7, 20; PRINCIPAL AND AGEnt, 5.
The fact that a debtor was a resident of a state in rebellion, and prevented by act of
Congress and the war from paying a debt due to a creditor in a loyal state, is no
ground for setting aside a sale made by virtue of a power in a trust deed given to
secure the payment of such debt. Washington University v. Finch, 152.
What constitutes a "record " of a court of general jurisdiction. Galpin v. Page, 534.
1. Original cognizance of all suits of a civil nature, at common law or in equity, is vested
in the circuit courts by the eleventh section of the judiciary act, concurrent with the
courts of the several states, subject to certain limitations, conditions, and restrictions.
Grover & Baker Sewing-machine Co. v. Florence Sewing-machine Co. 389.
2. Those conditions, applicable to the present case, are, that the matter in dispute shall
exceed, exclusive of costs, the sum or value of five hundred dollars, and that an alien
is a party, or that the suit is between a citizen of the state where the suit is brought
and a citizen of another state. lb.
3. Where the matter in dispute does not exceed, exclusive of costs, the sum or value of
five hundred dollars, the circuit courts have no jurisdiction, except in revenue and
patent cases; and the restrictions applicable to all cases is, that no civil suit shall be
brought before any circuit court against any inhabitant of the United States by any
original process in any other district than that whereof he is an inhabitant, or in which
he shall be found at the time of serving the writ. Ib.
4. Suits, whether at law or in equity, when commenced in a state court against an alien,
or by a citizen of the state in which the suit is brought against a citizen of another
state, may, under the twelfth section of the same act, be removed by the defendant for
trial into the next circuit for the same district, provided the defendant file a petition
requesting such removal at the time of entering his appearance in the state court, and
comply with all the other conditions specified in the section. Ib.
5. By the true construction of that section it is required, in order that the right to effect
the removal may arise, that each distinct interest should be represented by persons, all
of whom are entitled to sue, or such as may be sued in the federal courts; the estab-
lished rule being, that where the interest is joint each of the persons concerned in that
interest must be competent to sue or be liable to be sued in the court to which the suit
is removed. Ib.
6. Circuit courts do not derive their judicial powers immediately from the Constitution;
consequently the jurisdiction of such courts in every case must depend upon some act
of Congress, as the Constitution provides that the judicial powers of the United States
shall be vested in one supreme court and in such inferior courts as the Congress may
from time to time ordain and establish. Ib.
7. Courts created by statute can have no jurisdiction in controversies between party and
party except such as the statute confers. Ib.
8. Different regulations are enacted in the subsequent act for the removal of causes in
certain cases from the state courts, but this act, like the judiciary act, limits the right
of removal to the alien defendant, and to the defendant who is a citizen of a state
other than that in which the suit is brought. Ib.
9. None but the alien defendant or the non-resident defendant have any right under that
act to petition for the removal of the case, but the provision is that such a defendant
may at any time before the final hearing of the cause remove the same from the state
court into the circuit court for trial, subject to the conditions therein expressed, even
though it appears that a citizen of the state where the suit is brought is also a defend-
ant; if (1) the suit, so far as it relates to the alien defendant or the non-resident de-
fendant, was instituted and is prosecuted for the purpose of restraining or enjoining
such defendant; or (2) if the suit is one which, so far as it respects such alien or non-
resident defendant, can be finally determined without the presence of the other de-
fendant or defendants as parties in the cause. Ib.
10. Cases can only be removed under that act, however, subject to the fundamental con-
dition that the removal of the cause shall not be deemed to prejudice or take away the
right of the plaintiff to proceed at the same time with the suit in the state court, if he
shall see fit against the other defendants. Ib.
11. Nothing can be inferred from that act to support the theory assumed by the defend-
ants, as the material phrase of the act is the same as the language employed in the
judiciary act, and the construction must be controlled by the rule that words and
phrases, the meaning of which have been ascertained by judicial interpretation, are,
when used in a subsequent statute, to be understood in the same sense. Ib.
12. Congress amended that act on the 2d of March, 1867, and extended the right of
removal in such a case to the citizen of another state, whether he be plaintiff or de-
fendant, in a suit commenced or pending in a state court, in which there is controversy
between a citizen of the state in which the suit is brought and a citizen of another
state. Ib.
13. Aliens are not included in the new enactment at all, and the conditions applicable to
the non-resident party, whether plaintiff or defendant, are, that the petitioner must
file in the state court an affidavit, stating that he has reason to believe, and does be-
lieve, that, from prejudice or local influence, he will not be able to obtain justice in
such state court; and the act provides that if he will file such affidavit and comply
with all the other specified conditions, he may, at any time before the final hearing or
trial of the suit, apply to the state court for the removal of the suit into the next circuit
court to be held in the district, and that it shall be the duty of the state court to pro-
ceed no further in the suit. Ib.
14. Appropriate language to show that the law makers intended to vest in the non-
resident party, whether plaintiff or defendant, the right to remove the suit into the
circuit court in a case where a citizen of the state in which the suit is brought is
joined in the suit with the petitioner, is wholly wanting, nor is it competent for the
court to supply the deficiency by construction, as it is obviously the main purpose of
the act to extend the right of removal to the non-resident plaintiff as well as to the
non-resident defendant. lb.
15. Words to express any such purpose are entirely wanting, the language employed
being that a pending suit, or one hereafter brought, in a state court "in which there is
controversy between a citizen of the state in which the suit is brought and a citizen of
another state," . . . . whether he be plaintiff or defendant," such citizen of another
state may remove the same into the circuit court. Ib.
16. Instead of that the language of the judiciary act is, if a suit is commenced in a state
court" by a citizen of the state in which the suit is brought against a citizen of another
state," the defendant may remove the suit into the circuit court if he file his petition at
the time he enters his appearance in the state court. Ib.
17. Beyond doubt the phraseology of the two provisions is different, but they mean the
same thing in respect to the party who may effect the removal, except that the last act
extends the privilege to the non-resident plaintiff as well as to the non-resident defend-
ant; but all of the plaintiffs or all of the defendants, as the case may be, must be non-
residents and must join in the petition for the removal of the suit. Ib.
18. A United States court may exercise authority over property involved in a suit which
has been removed to it, far enough to protect the rights of the parties, even if its juris-
diction in respect of such suit be uncertain and the question thereof pending. Thus
it may, in an emergency, under such circumstances, issue its injunction to prevent
waste. Warren v. Ives, 363.
RES ADJUDICATA.
See JUDGMENT, 5.
If the water of a stream becomes polluted by the emptying into it of city sewers, so that a riparian proprietor cannot use it in his business as he has been before accustomed to do, he cannot recover against the city for the pollution, so far as it is attributable to the plan of sewerage adopted by the city; but he can recover for it so far as it is attributable to the improper construction or unreasonable use of the sewers, or to the negligence or other fault of the city in the care or management of them. Merrifield v. City of Worcester, 480.
See BANKRUPTCY, 5; BILLS AND NOTES, 3; PRINCIPAL AND AGENT, 1.
1. To render the directors of a bank liable for a special deposit wrongfully converted and used by the bank, it is only necessary to show that, but for their gross inattention, a knowledge of the conversion must have been brought to the notice of the directors. Actual knowledge is not necessary. United Society of Shakers v. Under
2. A special deposit is neither more nor less than a naked bailment. Ib.
SPECIAL LAW.
See CONSTRUCTION OF STATUTES.
A purchaser of land who is entitled under his contract to a perfect title cannot be compelled to perform his agreement, if the property purchased be subject to a judgment lien, unless he can be protected by the decree from loss by inconvenience by reason of the lien, although it be shown that the judgment debtor has other property sufficient to satisfy the judgment. Walsh v. Barton, 341.
1. A material change in the charter of a railroad company will have the effect of releasing a subscription to its stock. But the change must be something that was not authorized at the time the subscription was made. Nugent v. Supervisors of Putnam Co. 376. 2. A subscription was made by a county to a railroad which was consolidated with another railroad, the charter of the company to which the subscription was made permitting the consolidation. It was held that the subscription was not released by the consolidation. Ib.
SUNDAY.
See INJUNCTION, 3.
TAXATION.
1. The city council of Richmond may lay a tax upon lawyers as such. Ould v. Richmond, 241.
2. The ordinance of the council provides that lawyers and others shall be divided into six classes, and that those in each class shall pay a certain sum as his tax; and it directs that the committee of finance shall place each lawyer in the class to which they
shall think he properly belongs, looking to all the circumstances of the case. And it is provided that when the committee have completed their classification, public notice shall be given, and any lawyer dissatisfied with his classification may appear before the committee and have it corrected if erroneous. Held, the tax is not an income tax, nor are the duties imposed on the committee legislative, but ministerial; and the ordinance is not unconstitutional. Ib.
See INJUNCTION, 1; MUNICIPAL CORPORATION.
A tax deed which the statute does not make primâ facie evidence of the regularity of the assessment and sale does not cast a cloud upon the title. Minturn v. Smith, 507.
TELEGRAPH COMPANY.
See NEGLIGENCE, 8-18.
1. When it is apparent that there is an intention to deceive the public by the use of the name of a place and the word descriptive of an article, such deception will not be protected by the pretence that such words cannot be used as a trade-mark. Lea v. Wolff,
2. Where words and the allocation of words have, by long use, become known as designating the article of a particular manufacturer, he acquires a right to them as a trademark, which competing dealers cannot lawfully invade. lb.
3. The essence of the wrong is the false representation and deceit, on proof of which an injunction will issue. Ib.
See PLEADING AND PRACTICE, 1.
See SPECIFIC PERFORMANCE.
The constitution of Virginia took effect, so far as it relates to exemptions, on the day it was ratified, July 6, 1869. In re Deckert, 336.
The existence of war does not prevent the citizens of one belligerent power from taking proceedings for the protection of their own property in their own courts, against the citizens of the other, whenever the latter can be reached by process. Lee v. Rogers, 219; Masterson v. Howard, 155.
1. An altered certificate was deposited with defendant, by a third party, as collateral for a loan and the usual printed form of transfer on the back thereof, signed by their cashier. It subsequently came into the hands of plaintiff, who took it in good faith and relying upon the cashier's signature, and who, upon discovering the fraud, brought suit against defendants. Held, that the bank by signing the blank transfer had so far warranted the genuineness of the certificate that it was estopped from setting up forgery as a defence. Held, also, that it was negligence in the bank to transfer the certificate in blank instead of to the party who deposited it by name. Matthews v. Mass. Nat'l Bank, 512.
See REMOVAL OF CAUSES, 18.
WRIT OF ERROR
See PLEADING AND PRACTICE, 7.
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