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move in that way. I has not done so, and the injunction is a matter of course. The plaintiff must give the usual undertaking as to damages.

Neath Canal Co. v. Ynisarwed Resolven

Colliery Co.

L. R., 1 Chancery Appeals, pp. 450–

458.

Opinion by James, L. J.; Mellish, L. J. concurring. May 3, 1875.

INSURANCE-MARINE.

End of voyage. "General average_per

Held, 1. That the voyage was properly ended at Constantinople.

2. That the term "general average as per foreign statement" contemplated that the loss was to be fixed as by the rules of foreign, not English, courts.

3. That the adjustment was duly made according to foreign law, which, in this case, was the French law.

Mavro et al v. The Ocean Marine Insurance Co.

L. R., 10 Common Pleas, pp. 414-420. Opinions by Cockburn, C. J., Bramwell, Blackburn, Pollock and Amphlett, JJ May 11, 1875.

foreign statement" construed. Eng-Abandonment. Stringent necessity. Evi

lish and French rules examined.

A policy of insurance was issued by the defendant on a cargo of wheat shipped from Varna to Marseilles. It contained the usual clause against average unless general, and this term general average as per foreign statement."

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The ship was forced to carry a heavy sail to avoid a lee shore; she was strained,

sprung a leak and was otherwise dis abled, and was brought to Constantino

ple. A fifth of the wheat was damaged, and the surveyors recommended that the voyage be terminated, the damaged part of the wheat be sold, and the rest transhipped, for the ship would be detained for repairs two months. This was done, and an adjustment of average of the ship and cargo was made. The damage to the wheat was treated as general average, and in accordance therewith a certain sum became payable by the defendants.

The adjustment was regulated by the French law, and was in all respects in conformity thereto. By the law of England the damage to the wheat, under the circumstances, would not be a general average loss, for the use of a press of sail to avoid a lee shore, and injury to the ship thereby, is not treated by the English law as an intentional sacrifice made of a part of the property imperilled for the general good.

dence.

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The vessel was carrying 420 tons of coal and she ran on a reef. The master of the vessel sent for a tug to draw him off, but that could not be done in the

weighted condition of the boat; and then

10 tons of coal were taken out but still she could not be moved, and thereupon

she was abandoned and sold the same the coal and got the vessel off. day. The purchasers removed more of

There was a verdict for plaintiff, and defendants appeal.

that stringent necessity which must be shown to justify the abandonment of the vessel.

Held, That the evidence does not show

Cobequid Marine Insurance Co., dfdts., v. Barteaux, pl'ff.

L. R. 6 Privy Council Appeals, pp.

319-329.

Judgment delivered by Sir Henry S. Keating. March 18, 1875.

MUSICAL COLLEGES, ETC.

NEW YORK.

SECTION 1. Ten or more citizens, a majority of whom shall be inhabitants of

the State, may found and endow a musi- objection, and testified that he considered cal college, school or academy within it a desirable yard, and another testified the State for the education of persons in that he asked the said testator why he the lower and higher branches of music, by making, signing and acknowledging,

did not put them in the yard nearer by, before an officer authorized to take ac because it was higher and better, and in knowledgment of deeds, a certificate in case of a storm it would be easier to take writing, giving the name of the proposed them out and take care of them. During institution; the names of the first trus- the night an unprecedented and unextees, not less than seven; the object of the incorporation, and the name of the pected storm arose, and the yard in city or town of its location, which shall which the cattle were was overflowed, be filed in the office of the county clerk and they were drowned. where located; and it may hold in real and personal estate property to the amount of two millions of dollars.

SEC. 2. The institution shall have the powers, privileges, and be subject to the provisions of Tit. 3, Chap. 18, Part 1, Rev. St., so far as applicable. The trustees shall have power to grant and confer diplomas and the degree of Doctor of Music.

SEC. 3. The institution may take, by bequest or devise, any property the income of which shall not exceed two hundred thousand dollars, and shall be subject to the provisions of law relating to devises and bequests by last will and

testament.

Passed April 27, 1875.

NEGLIGENCE,

Care of cattle. Extraordinary storm.
Drowning of cattle. Non-suit.

At the close of plaintiffs' evidence the defendants' counsel moved for a nonsuit, which was denied, and a verdict for the value of the cattle rendered for plaintiffs.

Held, Error; that the evidence of negligence on the part of defendants' testator was not sufficient to justify the submission of the question to the jury, and the motion for a non-suit should have been granted. Also held, That the fact that defendants' testator put his own cattle in a yard where they escaped injury did not tend to show negligence; that to establish negligence it should have been made to appear there was reason to apprehend that the cattle would be in danger where they were placed. Morgan et al., respdts., v. Crocker et al., Extrs., applts. N. Y. Court of Appeals. Opinion by Rapallo, J. Case not reported.

Contributory negligence. Error to take the question from the jury. Negligence of fellow-servant. Rule as to supplying proper appliances by principal applied.

This action was brought to recover damages for alleged negligence on the part of defendants' testator, resulting in the loss of 22 cows. It appeared upon the trial that plaintiffs delivered the cows to said testator, who was the proprietor of cattle yards on the shore of Lake Erie, near Buffalo, until they could be shipped East. The yard in which the cattle were put was one in ordinary use, but it was lower than the others, and in case of a flood liable to be overflowed. It did not appear that any cattle had ever been destroyed there, or that the yard had ever before been overflowed to a sufficient depth to endanger track. The depot master testified that he them. One of plaintiffs' agents assisted had no business to go on the track, nor in putting the cattle in the yard, without any duty there. On Aug. 10, 1872, as a

This action was brought to recover damages for negligently causing the death of plaintiff's intestate. The evidence showed that the deceased was employed by defendant to attend to a chain across 52d street, on the west side of its

train of cars was passing over the track, going north, through the negligence of an employee of defendant, a switch became displaced, and two cars of the train became detached and ran off the track, and collided with some empty cars stand

N. Y. Court of Appeals, 1875. Opinion by Church, C. J. Case not yet reported.

ing on a side track. These were suddenly When all issues properly determined, not

NEW TRIAL.

to be granted.

Plaintiff claimed to have hired certain

ant.

Plaintiff was afterward evicted, and brought suit to recover damage to his business, etc.

put in motion, and the deceased was found lying on or near the side track crushed, and in a dying condition. There was some evidence tending to show that premises from the defendant, and that he deceased was furnished with a white and made certain repairs thereon upon the red flag, and that these chain tenders faith of representations made by defendsometimes signalled trains, and if there was danger it was their duty to do so. The complaint was dismissed on the ground of contributory negligence on the part of the deceased. Held, that the ground of the decision below could not be sustained, as the question of contributory negligence was, under the evidence, a proper one for the jury, there being evidence from which it might be inferred that the deceased was rightfully on or b. Were the improvements made by near the track to signal trains; but the ruling below was sustained, on the the plaintiff upon the strength of any ground that the accident occurred encouragement given by the defendant? 2. The evidence in the case is contrathrough the negligence of a fellow-servant, for which the defendant was not

liable.

The jury found for the defendant; and on motion the Chief Judge set the verdict aside, and granted a new trial.

Held, 1. That the only issues to be determined were,

a. Was there or not the agreement for letting?

dictory, and would have supported a verdict for either party.

3. It is the well established rule that

new trial will not be granted unless
there is some exception or question open
for examination. There is none left un-
determined in this case.
Searing v. Slade.

City Court of Brooklyn, Gen'l T.
Opinion by Mc Cue, J., Reynolds, J.,
concurring.
Filed May 24, 1875.

There was evidence that the switch, which had just been put in, was not a properly secured, and the switchman stated that this was in consequence of the holes being too small for the pin which fastened the lever. Held, that this slight defect was not imputable to defendant as a principal required to furnish proper appliances, &c.; that it was the duty of the switchman to have used the means he had been accustomed to use before the switch was put in, when he found it did not work, or he should have held the lever himself, or signalled the train, or taken steps to have had the holes enlarged. As he did neither, the accident, within the rules of law, is attributable to him. This was an action of partition. The Sammon, Adtræ., applt., v. The New complaint alleged that the land was owned York and Harlem R. R. Co., respt. | by W. H. Macy and Thomas Nelson in

PARTITION.

Question of fact for Referee. Judgment of General Term on the Referee's finding of fact not reviewable. Nor is the question of costs settled by General Term.

Opinion by Miller, J. Case not yet reported.

PAUPER AND DESTITUTE CHIL

DREN.

NEW YORK.

common, subject to the contingent rights of dower of their respective wives; that the defendants, Josiah G. Macy and wife, had no interest therein, and that a partition could be made without prejudice to the interests of the owners, and prayed for such partition if it could be so made; if not, then for a sale. The defendant NelSECTION 1. On and after January 1, son admitted his ownership of one-half of the land; alleged that the defendant 1876, all pauper and destitute children, except unteacheable idiots, epileptics, Josiah G. Macy was in fact the owner of paralytics, and those otherwise defected, the other half, and denied that a partition diseased or deformed so as to be unfit could be made without prejudice to the for family care, between the ages of three and sixteen, shall not be kept in the The case was on the calendar poor-houses, but provided for in families, regularly noticed; the parties were rep-orphan asylums, or other appropriate inresented by counsel, and the action was stitutions, as now provided by law. ordered to be referred to a Referee to

owners.

hear and determine the same. It does not appear that any objection was interposed to the order granted. The Referee reported that the premises were incapable of partition without prejudice to the owners, and that the effect of a partition in two parcels, to be held by different owners, would be that the two parcels would be worth one-third less than if both were owned by one person. On this report a judgment of sale was given.

SEC. 2. County superintendents of the poor shall remove the children described to such institutions, etc. The Boards of Supervisors shall take the necessary steps to carry out this Act, and the children shall be, as far as it is practicable, placed in institutions of the same religious faith as that of their parents.

Passed April 24, 1875.

PRACTICE.

Findings by jury in issues in Equity not
controlling on the Court.
The answers
of the jury to assist the Court.

Issues were directed to a jury in a suit to foreclose a mechanics' lien, and the jury found thereon.

And it was

On the trial the Judge did not follow the findings of the jury, but gave a judg ment on findings of his own. objected that the findings of the Court and the conclusions of law must accord with the findings of the jury, unless they are set aside, in accordance with Supreme Court rule No. 40.

Held, That the Special Term had jurisdiction to make the order of reference, and it was to be assumed that the order was assented to, and so all question as to regularity waived, and that the question whether a partition could be made was a question of fact for the Referee to determine, and the fact given by the Referee that the premises would be worth less if divided in two parts, to be held by different owners, than if owned by one, was sufficient to justify his conclusion; and as it was not entirely apparent that the evidence was insufficient to sustain this conclusion the General Held, 1. The questions were submitted Term properly refused to interfere. Its to the jury that their answers might asdecision on this point is not reviewable sist the Court upon the trial, and the in this Court. Court may, upon the trial, make such The question of costs was also discre- findings as it sees fit, going to the extent tionary with the Court below.

Macy et al., v. Nelson et al.
N. Y. Court of Appeals, 1875.

of superseding the findings of the jury by findings of its own. And this the Court may do on its own motion.

Smith et al. v. Chasseaud.

City Court of Brooklyn, Gen'l T Opinion by Reynolds, J., Mc Cue, J., Joncurring. Filed July 23, 1875.

SNOW DRIFTS-PREVENTING.

NEW YORK.

Any inhabitant liable to highway_tax who shall remove from lands owned or

Held, 1. That there can be no rescission.

2. That the vendor was bound by his representation of the amount of stores used.

3. That the purchaser is entitled to to compensation for the reduced income, to be determined by the simple rule of three:

As £66,049 is to £361,674, so is £9,500 occupied by him, the fence along any to the sum to be deducted. That would public highway, for the purpose of pre- be £52,020. venting the drifting of snow into such

4. That the sum of £423,096, estimated

highway, shall be allowed by the overseer of highways, in abatement of his value of the mines as claimed by the highway tax, the time actually expended vendor, is a mere calculation and a matin removing such fence and in replacing ter of opinion only, and is not to be conthe same; provided, however, that no allowance shall be made as herein before sidered. The purchase price of £361,674 provided unless such fence shall be re- must be taken as the basis of the transmoved pursuant to the direction of the action. overseer of highways.

Passed April 29, 1875.

N. B.-This Act does not contain the section that it shall take effect immediately.

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Compensation for reduced value of premises. Representation as to cost of working mines. Computing compensation. Costs.

In a suit for the specific performance of a contract to purchase extensive col

5. The costs will not be divided. That question should have been raised at the hearing. But the purchaser has established his right to a very substantial abatement; and, in our opinion, the ViceChancellor has made the proper disposition of the costs.

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liery works, the purchaser defended that SUPPRESSION OF VICE AND OB

the vendor had misrepresented the amount of the stores consumed in work

SCENE LITERATURE.

NEW YORK.

ing the mines, and that the income was Any agent of the New York Society proportionately reduced. A cross bill for the Suppression of Vice, upon being was brought to have the contract re-designated thereto by the sheriff of any scinded, on the ground of the misrepre

sentations.

It was found that the purchaser had misrepresented, as stated, to the amount of £9,500. The purchase was for 6 years. The purchase price was £365,000, which was reduced to £361,674, which yielded £66,049. The vendors claimed that mines producing such an income were worth £423,096.

county in this State, may within such county make arrests and bring before jurisdiction, offenders found violating any court or magistrate thereof having the provisions of any law for the suppression of the trade in and circulation advertisements and articles of indecent of obscene literature and illustrations, and immoral use, as it is or may be forbidden by the laws of this State, or of the United States.

Passed April 29, 1875.

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