*

writing is essentially testamentary in its nature. * # Its object was to make disposition of property after the death of the owner. It did not after such death take effect as a testamentary devise, for it was not executed and witnessed as required by the statute of wills."

There is a subordinate question in respect of one other of the defendants - Mrs. Sayles. The intestate in his life-time had made to her a deed for forty acres of land, and she gave to him a receipt expressing that she had received from him the sum of $1,000 in land. It is contended by appellants, that this forty acres of land was an advancement to Mrs. Sayles, and should have been so treated, instead of decreeing, as the court did, that Mrs. Sayles had not been advanced, and that she should share equally with the others in the lands to be partitioned. The evidence shows the intestate had made various gifts of land and money to his children during his life-time, and had endeavored to treat them equally in this respect. There was evidence of his repeated declarations that he had given all his children equal amounts of property, and that he had made them equal. The evidence on this branch of the case, which was objected to, we regard as properly received.

As to Mrs. Sayles we think the decree correct, and it is affirmed as to her, and in all other respects except as to Mrs. Jones. As it regards her, the decree is reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed in part and in part affirmed.

Scott, J., dissenting.

[See 94 Ill. 386; 63 Cal. 493; 61 Iowa, 23.-ED.]

NEW YORK COURT OF APPEALS ABSTRACT.

RETAIN

LARCENY -PARTING WITH POSSESSION ING TITLE.—Where one is induced by false and fraudulent representations to pledge money as security, parting with its possession, but without intending to part with the title thereto, a conversion of the money, by a party inducing the fraud, constitutes the crime of larceny. The rules of law applicable to such a case as this have been so clearly laid down and so thoroughly

discussed in various cases in this court that a further statement or examination of them at this time is wholly unnecessary. People v. McDonald, 43 N. Y. 61; Smith v. People, 53 id. 111; Hildebrand v. People, 56 id. 394; S. C., 15 Am. Rep. 435; People v. Loomis, 67 N.Y. 322; S. C., 23 Am. Rep. 123; Zink v. People, 77 N. Y. 122; S. C., 33 Am. Rep. 589; Thorne v. Truck, 94 N. Y. 95; S. C., 46 Am. Rep. 126. People v. Morse. Opinion by Earl, J.

[Decided June 23, 1885.]

NEGLIGENCE—EVIDENCE OF EXCLAMATION OF PAIN -TIME OF INJURY.-This action was brought to recover damages for an injury received by the plaintiff from the alleged negligence of the defendant. On the trial, after the injury and the circumstances under which it occurred, and the condition of the plaintiff thereafter had been proved, one of her witnesses was asked the following question: "What expressions did she (the plaintiff) make, or what manifestations, showing that she suffered pain?" This was objected to as immaterial and incompetent, and the objections were overruled, and the witness answered: "Why, you could not lift her, nor do any thing with her, because she had such a pain in that foot." This question was then asked: "How did she manifest that?" To which the same objections were made, which were overruled, and an exception was taken by the defendant. The witness answered: "She screamed; and the foot was so sore that even the sheet could not

touch it, and it was very much swollen." It is now claimed that the trial judge erred in permitting the last question to be answered, and the witness to state that the plaintiff manifested pain by screams. Screaming, or some similar exclamation, is the natural language of pain in all men, and in all animals as well. It usually, and almost invariably, accompanies intense pain; and hence such exclamations have always been received as competent evidence, tending to show suffering. And it is said to be original evidence. Greenl. Ev., § 102; Caldwell v. Murphy, 11 N. Y. 416; Werely v. Persons, 28 id. 344; Matteson v. N. Y. C. R. Co., 35 id. 487. While the necessity for the reception of such evidence is not so great since parties have been permitted to be witnesses in their own behalf as it was before, yet the rule allowing such evidence has not been abrogated, and it must still have operation. The person injured may be dead, or for some reason, unable to testify; and in such cases, certainly, the necessity for the reception of such evidence exists now as formerly. Although the injured person is a witness and testifies at the trial, the exclamations of pain made by such person may be proved and used to corroborate other evidence, and to give a more particular or vivid description of his or her condition. If evidence of the exclamations which are the natural concomitants and sigus of pain and suffering were excluded, in many cases a party testifying, or a witness in his own behalf, would be deprived of that corroboration of his evidence to which he is justly entitled. Evidence may be given that a person appeared to be in great agony; was emaciated; looked haggard and feeble; and why not that he screamed from pain? Whether such exclamations were real or feigned is always to be determined by the jury; and hence it is a very safe species of evidence to be received. So too the absence of such exclamations, with other appearances, may be prevod as a circumstance bearing upon the question of suffering. Hagenlocher v. Coney Island, etc., R. Co. Opinion per Curiam. [Decided May 5, 1885.]

CORPORATION-MAY BE GUILTY OF FRAUD-BANK RECEIVING DEPOSITS WHEN INSOLVENT-NOTICE.-The

general doctrine that upon a deposit being made by a customer, in a bank, in the ordinary course of business, of money, or of drafts or checks received and credited as money, the title to the money, or to the drafts or checks, is immediately vested in and becomes the property of the bank, is not open to question. Commercial Bank of Albany v. Hughes, 17 Wend. 94; Metropolitan Nat. Bank v. Loyd, 90 N. Y. 530. The transaction in legal effect is a transfer of the money, or drafts or checks, as the case may be, by the customer to the bank, upon an implied contract on the part of the latter to repay the amount of the deposit upon the checks of the depositor. The bank acquires title to the money, or drafts or checks, on an implied agreement to pay an equivalent consideration when called upon by the depositor in the usual course of business. The further rule that one who has been induced to part with his property by the fraud of another, under guise of a contract, may upon discovery of the fraud, rescind the contract, and reclaim the property, unless it has come to the possession of a bona fide holder, is equally well settled, and does not at all depend upon the character of the wrong-doer, whether a corporation or natural person. A corporation may be in a legal sense guilty of a fraud. As a merely legal entity it can have no will, and cannot act at all, but in its relations to the public it is represented by its officers and agents, and their fraud in the course of the corporate dealings is in law the fraud of the corporation. There is more difficulty in establishing a fraud against a corporation than against an individual. This arises from

the difficulty in many cases of determining whether the fraud charged is imputable to the corporation. There may be knowledge of a fact by an agent of a corporation, which if brought home to the corporation itself would create responsibility in a given case, but as to which notice will not be imputed to the corporation merely from the fact that it was known by the agent. The general rule is well established that notice to an agent of a bank, or other corporation intrusted with the management of its business, or of a particular branch of its business, is notice to the corporation, in transactions conducted by such agent, acting for the corporation, within the scope of his authority, whether the knowledge of such agent was acquired in the course of the particular dealing, or on some prior occasion. Holden v. N. Y. & Erie Bank, 72 N. Y. 286; Bank of United States v. Davis, 2 Hill, 452. The drafts for the proceeds of which this action is brought, amounting to $14,793.37, were deposited by the plaintiffs in the usual course of business, with the First National Bank of Buffalo, between two and three o'clock in the afternoon of the 13th day of April, 1882, and were credited in the plaintiffs' pass-book and on the books of the bank to their account. The bank closed its doors at the usual hour on that day and never opened them afterward. It turned out that the bank was irretrievably insolvent, owing debts to the amount of $1,300,000, with assets not exceeding in value forty per cent of that amount, and had been so insolvent for months before its failure. It does not admit of question that the condition of the bank was such that if it was known to its officers and agents charged with the direction and management of its affairs, a gross fraud was perpetrated on the plaintiffs in permitting them, in reliance upon its supposed solvency, to make the deposit in question. The bank was not only irretrievably insolvent, but it had apparently given up the struggle to maintain its credit before the deposit was made. Its drafts had gone to protest on the twelfth, and it was manifest that a condition of open insolvency must immediately ensue. The acceptance of the deposit under those circumstances constituted such a fraud as entitled the plaintiffs to reclaim the drafts or their proceeds. See Anonymous case, 67 N. Y. 598. The presumption that the managing officers and agents of the bank had notice of its condition, arises from the circumstances. They could not have been ignorant without imputing to them gross inattention to its affairs. It was moreover admitted on the trial that the entire control and management of the bank was in fact intrusted to and conducted by its president, and it is clearly shown that he was familiar with the desperate condition of the bank at the time of, and for many weeks before the deposit was made. It is claimed however that the right of the plaintiffs to reclaim the drafts or their proceeds is precluded by sections 5234 and 5242 of the Revised Statutes of the United States, which forbid all preferential payments or transfers by an insolvent bank, and provide for a ratable distribution of its assets among its creditors. The answer is that the plaintiffs do not claim under a transfer from the bank, but under their original title. They are not seeking to enforce any right as creditors of the bank, but to reclaim their own property obtained by fraud. Their relation as creditors terminated when they elected to rescind the contract. The right to a restoration in such case may be defeated by the acts or acquiescence of the defrauded party, or because the property has lost its identity and cannot be traced, or other persons have innocently acquired interests in ignorance of the fraud. But neither the creditor of an insolvent bank, nor its assignee in bankruptcy, has any equity to have the plaintiff's property applied in payment of the obligations of the bank, and the statute does not sanction so

palpable an injustice. Cragie v. Hadley. Opinion by Andrews, J.

[Decided May 5, 1885.]

to

RECEIVER-INJUNCTION-APPEAL-DISCRETIONARY ORDER.-The order here assailed, in its amended form permits the Albany and Rensselaer Iron and Steel Company to prosecute its action against the construction company to final judgment, and to enforce that judgment upon any property attached before the appointment of the receiver in this State, and forbids only any other interference with the assets of the construction company. Its sole effect, as against the appellant, is to prevent a seizure under process issued in its action, of assets already seized by the court, and held as well for the appellant's benefit as for that of the other creditors. It operates prevent the iron and steel company from attaching or levying upon, for its own sole benefit, property already attached and levied upon by an equitable process for the benefit of all the creditors alike. It preserves every right and lien acquired before the appointment of the receiver by the attachment creditor, and the privilege and power of enforcing them; and so raises merely the question whether the tribunal which appoints a receiver may, in aid of that appointment, forbid any after interference, by way of levy or seizure, with the property in his possession. Both parties concede that the possession of the court must not be invaded; that its officer cannot be sued without its permission; and that he cannot be dispossessed except at the peril of a contempt. What then must needs be the effect of the order in this case? It commands nothing which was not already commanded; it forbids nothing which otherwise was permissible; it takes away no right or remedy which the appointment of the receiver had not already taken away. Its sole practical effect was to give notice of that appointment and the rights secured by it, and charge the specific creditor with a conscious and willful contempt if he assailed the possession of the court. The order served was but a brief transcript of the order entered in the action appointing the aucillary receiver, for that vested in him the assets of the construction company and forbade not only the officers and agents of the defendant but "all other persons from interfering with his possession of the assets. The power of the court to make that order, in a case where it had jurisdiction to appoint the receiver as a necessary incident of that appointment, cannot be successfully disputed; and certainly it would seem strange if the power should be lost in the process of bringing that order to the notice of a specific creditor so as to insure his obedience to it. The provisions of the Code in respect to injunctions do not apply to the case. In one sense every order of a court which commands or forbids is an injunction. But an injunction proper is a recognized provisional remedy, and the rules of the Code apply to it as such. The order here is not of that character. It is like the one discussed in AttorneyGeneral v. Guardian Mutual Ins. Co., 77 N. Y. 272, in the respect now under consideration. There the suit of Carlisle was restrained by an order in the action in which the receiver was appointed, and was justified upon the ground, that as the receiver represented both stockholders and creditors, Carlisle, through that representation, was so far a party to the action that his proceedings in another suit might be stayed by an order aiming to protect the possession and authority of the receiver. The order was not granted or defended as an injunction order, but as one within the jurisdiction of a court of equity in an action pending before it and essential to the complete remedy which it was authorized by law to give. While the facts upon which the court acted were not identical with

whole claim is not to be rendered invalid and void for a mistake in measurement which injures no one, and was without design to violate the law. (3) It is for the court, while it has jurisdiction of the case, to decide whether either party, claiming land under the United States land laws, has lost his right by laches or failure to proceed with diligence, and to act accordingly. (4) A claim by a litigant pendente lite to land already in dispute between him and the other litigant will not be heard by the court to prejudice the merits of the case. Richmond Mining Co. v. Rose. Opinion by Miller, J.

[Decided May 4, 1885.]

CONSTITUTIONAL LAW-ART. 1, § 10, CL. 2-"IMPORTS AND EXPORTS"-GOODS AFTERWARD EXPORTED

INTERSTATE COMMERCE TAX UPON GOODS ARRIVED IN STATE AS THEIR DESTINATION.-The terms "imports" and "exports" in that clause of theConstitution which says that "no State shall, without the consent of Congress, lay any imposts or duties upon imports or exports," has reference to goods brought from or carried to foreign countries alone, and not to goods transported from one State to another. Where a general tax is laid upon all property alike, it cannot be construed as a duty on exports when falling upon goods not then intended for exportation, though they should happen to be exported afterward. It is the settled doctrine of the United States Supreme Court at this day that a State can no more regulate or impede commerce among the several States than it can regulate or impede commerce with foreign nations. But the imposition of a general tax upon goods from another State, arrived in the taxing State as their place of destination, is not a regulation of commerce with the objectionable effect. The power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations. If not in all respects an exclusive power; if in the absence of congressional action, the States may continue to regulate matters of local interest only incidentally affecting foreign and interstate commerce, such as pilots, wharves, harbors, roads, bridges, tolls, freights, etc., still according to the rule laid down in Cooley v. Board of Wardens of Philadelphia, 12 How. 319, the power of Congress is exclusive wherever the matter is national in its character, or admits of one uniform system or plan of regulation; and is certainly so far exclusive that no State has power to make any law or regulation which will affect the free and unrestrained intercourse and trade between the States, as Congress has left it, or which will impose any discriminating burden or tax upon the citizens or products of other States, coming or brought within its jurisdiction. All laws and regulations are restrictive of natural freedom to some extent, and where no regulation is imposed by the government, which has the exclusive power to regulate, it is an indication of its will that the matter shall be left free. So long as Congress does not pass any law to regulate commerce among the several States, it thereby indicates its will that that commerce shall be free and untrammelled; and any regulation of the subject by the States is repugnant to such freedom. This has frequently been laid down as law in the judgments of this court. In Welton v. State of Missouri, 91 U. S. 282, Mr. Justice Field, speaking for the court, said: "The fact that Congress has not seen fit to prescribe any specific rules to govern interstate commerce does not affect the question. Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that interstate commerce shall be free and un

license under a law of the State of Missouri, which prohibited any person from dealing as a peddler without license, and which declared that a peddler was one dealing in goods or wares "not the growth, produce, or manufacture of this State (Missouri), by going from place to place to sell the same." To the same purport, and on the same subject generally, see Gibbons v. Ogden, 9 Wheat. 209; License cases, 5 How. 575, 592, 594, 600, 605; Passenger cases, 7 id. 407, 414,419, 445, 462-464; Crandall v. Nevada, 6 Wall. 35, 41-49; Paul v. Virginia, 8 id. 168, 182-184; Ward v. Maryland, 12 id. 418, 430, 431; State Tax on Railway Receipts, 15 id. 293; The Lottawanna, 21 id. 581; Henderson v. Mayor of New York, 92 U. S. 259; Sherlock v. Alling, 93 id. 99; Railroad Co. v. Husen, 95 id. 465; Cook v. Pennsylvania, 97 id. 566; Guy v. Baltimore, 100 id. 434; Tiernan v. Rinker, 102 id. 123; Packet Co. v. Catlettsburg, 105 id. 559; Transportation Co. v. Parkersburg, 107 id. 701; and see Moran v. New Orleans, 112 id. 69. In the case of Railroad Co. v. Husen, 95 U. S. 469, in which another law of the State of Missouri came up for consideration, which declared that no Texas, Mexican, or Indian cattle should be driven or otherwise conveyed into the State, between the first of May and first of November, unless carried through the State in cars, without being unloaded, this court, through Mr. Justice Strong, said: "It seemed bardly necessary to argue at length that, unless the statute can be justified as a legitimate exercise of the police power of the State, it is a usurpation of the power vested exclusively in Congress. It is a plain regulation of interstate commerce, a regulation extending to prohibition. Whatever may be the power of a State over commerce that is completely internal, it can no more prohibit or regulate that which is interstate than it can that which is with foreign nations." In short it may be laid down as the settled doctrine of this court, at this day, that a State can no more regulate or impede commerce among the several States than it can regulate or impede commerce with foreign nations. Brown v. Houston. Opinion by Bradley, J. [Decided May 4, 1885.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

TELEGRAPH COMPANIES-EXCLUSIVE PRIVILEGESCONTRACT AGAINST PUBLIC POLICY.-A contract between a telegraph company and a railroad company, by which it is attempted to give an exclusive right to the former to build and operate a telegraph line over the lines and right of way of the railroad company, and by which the railroad company agrees to discriminate in the carriage and rates of freight against competing telegraph companies, being against public policy, is absolutely null and void Cir. Ct., E. D. Louisiana, Oct. 24, 1884. Baltimore & Ohio Tel. Co. v. Western Union Tel. Co. Opinion by Pardee, J.

CORPORATIONS-REDUCTION OF CAPITAL STOCK.Under the laws of Louisiana authority to increase the capital stock of a corporation must be express. As the increase of the capital stock, but are silent as to a de Constitution and laws of Louisiana provide for the crease, the power to reduce the stock of a corporation was intentionally denied. It is well-settled corporation law, "that a corporation has no implied authority to alter the amount of its capital stock where the charter has definitely fixed the capital at a certain sum. The shares of a corporation can neither be increased nor diminished in number, or in their nominal

in error had been convicted of selling goods without a

*Appearing in 24 Federal Reporter.

ana.

pany's charter." Mor. Priv. Corp., $230. See Tayl. Priv. Corp., § 133; Green's Brice's Ultra Vires, 158; Grangers' Life Ins. Co. v. Kamper, 73 Ala. 325. And it is understood that the same law prevails in LouisiWhile the Louisiana courts have not been called on to determine whether an increase or decrease of the capital stock of a corporation is within the scope of section 687 Revised Statutes, and there are few if any cases from sister States, the English courts have construed similar provisions against the claimed authority. In Smith v. Goldsworthy, 4 Ad. & E. (N. S.) 430, it was held that a provision "that for the better conduct and management of the affairs of the company, it should be lawful for a special general meeting called for the purpose, from time to time, to amend, alter, or anuul, either wholly or in part, all or any of the clauses of the said deed, or of the existing regulations and provisions of the company." Judge Martin, speaking of the attempted reduction of the capital of the Planters' Bank, says: "Creditors and customers have a claim to the preservation of the capital in its original integrity, for the faith of which they accept the notes of the institution, deposit their money, and lodge paper for collection. So has the public, on account of the advantages which the Legislature has stipulated the bank should afford, as a consideration for the immunities and privileges which the charter confers. So have the stockholders, on account of the profits which they have a right to expect on the investments they have respectively made." Cir. Ct., E. D. Louisiana, July 2, 1885. Seignouret v. Home Ins. Co. Opinion by Pardee, J.

MUNICIPAL CORPORATION-GRANT OF EXCLUSIVE PRIVILEGE TO STREET RAILWAYS-POWER OF KANSAS CITY, KANSAS-ELEVATED RAILROAD INJUNCTION.— In 1872 the city of Kansas, in Kansas, passed an ordinauce granting to the Kansas City & Wyandotte Street Railway Company "the sole right, for the space of twenty-one years, to construct, maintain, and operate their railway over and along all the streets in said city," subject to restrictions as to grade and condition of road. In 1881 the company leased to the Jackson County Horse Railroad Company a part of its road running through a certain street, and in 1883 the city passed another ordinance granting to the Interstate Rapid Transit Railway Company the right to construct and operate an elevated railroad through certain streets, including the street occupied by the Jackson County Horse Railroad Company, which filed a bill to enjoin the building of the elevated road. Held, that so much of the ordinance of 1872 as purported to give exclusive privileges to the lessor or to complainant was beyond the powers vested in the city of Kansas and void, and that complainant had no right to challenge the validity of the ordinance of 1883, or to restrain defendant from building its road. Decided cases on this question are few in number, yet these all speak one voice. In Davis v. Mayor, 14 N. Y. 506, it appeared that the city council had passed a resolution granting to a company the privilege of constructing and maintaining for a term of years a street railroad in Broadway in the city of New York. The city had simply the general supervision and control of streets, as in the case at bar. The Court of Appeals held the resolution void; that the city had no power to make such a grant; and while some of the judges thought that the city might permit the occupation of the street by a street railway company, all agreed that so much of the resolution as purported to bind the city for a term of years, and thus practically divest it of full control over the street, was beyond the powers granted to it. In Cooley Const. Lim. (2d ed.) 207, it is said that "a corporation, having power under its charter to establish and regulate streets cannot, under this

authority, without explicit legislative consent, permit an individual to lay down a railway in one of its streets, and confer privileges exclusive in their character." People v. Kerr, 27 N. Y. 188; State v. Gaslight Co.. 18 Ohio St. 262; Gas-light Co. v. Gas Co., 25 Conn. 20; Mayor v. Railroad Co., 26 Penn. St. 355; Com. v. Railroad Co., 27 id. 339. Cir. Ct., D. Kansas, March 3, 1885. Jackson County Horse R. Co. v. Interstate Rapid Transit Ry. Co. Opinion by Brewer, J. SHIP AND SHIPPING -ADMIRALTY JURISDICTIONMARITIME CONTRACTS-CHARTER-PARTY-ADMIRALTY LIEN ESTOPPEL.-A charter-party is a maritime contract, and within the admiralty jurisdiction. It is well settled since Insurance Co. v. Dunham, 11 Wall. 1, that all contracts having reference to maritime service, maritime transactions, or maritime casualties, are maritime contracts, and within the admiralty jurisdiction of the courts of the United States. Whether the jurisdiction is in rem or in personam depends upon whether the contract imports a lien on the ship. (2) When the terms of an offer by cablegram were ambiguous, and misunderstood by the parties receiving and accepting the same, to the knowledge of the party making the offer, it was the duty of the latter to have at once given notice by cablegram of the misunderstanding, and to protest against the acceptance as made, and their failure to do so estopped them from denying the contract as made from such acceptance of their offer. They were silent when equity required them to speak. This view of the case is well supported by authority: "Equitable estoppel is the effect of the voluntary conduct of a party, whereby he is absolutely precluded, both at law and in equity, from asserting rights which might have otherwise existed, either of property, of contract, or of remedy, as against another person who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who, on his part, acquires some corresponding right, either of property, of contract, or of remedy." Pom. Eq. Jur., § 804 and note. See also id., § 805, where silence is recognized as conduct to work an estoppel, as well as language and acts. See further, 2 Pars. Cont. 499; Story Ag., § 74, tit. 4, ch. 2, §2, Civ. Code La.; Commercial Bank v. New Orleans, 17 La. Ann. 190; Kerr Fraud & Mis. 409; Bigelow Estop. 502, in relation to Hope v. Lawrence, 50 Barb. 258; Gregg v. Wells, 10 Ad. & El. 90; Cornish v. Abington, 4 Hurl. & N. 549; Benj. Sales, 39; Pollock Cont. 420; Leather Cloth Co. v. Hieronimus, L. R., 10 Q. B. 140. Cir. Ct., E. D. Louisiana, June 12, 1885. The Alberto. Opinion by Pardee, J.

RHODE ISLAND SUPREME COURT

ABSTRACT.*

WILL-DEVISE IN TRUST-POWER OF SALE.-"The remaining one-third part of said residuary (estate) I give, devise and bequeath unto my said nephew, William Ames, in trust for the uses and purposes following, that is to say: The said trustee shall collect and receive all the rents, dividends, profits and income that may arise or accrue from or out of said onethird part, and the same from time to time in his own discretion apply and appropriate for the sole use and benefit of my said sister, Candace C. Carrington, for and during the term of her natural life; hereby authorizing and empowering my said trustee in his discretion, and if shall at any time deem it wise and expedient, to apply and appropriate the whole or any portion of the body or capital of said one-third so held in trust as aforesaid, to the use and benefit of my said

*To appear in 15 Rhode Island Reports.