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such a proceeding is ancillary to the action of the court in the case at bar, and if silence could be regarded as and simply advisory. If the verdict was not set aside an admission of the correctness of the statement made, the court was authorized to give it such weight as it the same rule is applicable to each case, and the dedetermined it was entitled to. It could treat it as en- cision last cited is controlling. Numerous other cases tirely conclusive, and dispense with other evidence tend in the same direction. Waring v. U. S. Tel. Co., upon the issues presented, or it could allow other evi- 4 Daly, 233 ; Anthoine v. Coit, 2 Hall, 40; Robinsoji v. dence to be given, or entirely disregard the verdict, Fitchburg R. Co., 7 Gray, 92; Hill v. Pratt, 29 Vt. 119; and find the fact according to its own judgment. Dan. People v. Lockwood, 3 Hun, 304; Fairlie v. DenCb. Pr. 1146; Bootle v. Blundell, 19 Ves. Jr. 494, 499;ton, 3 Carr. & P. 103; Draper v. Crofts, 15 Mees. & Hampson v. Hampson, 3 Ves. & Bea. 41; Basey v. Gal- Welsb. 166; MeGuire v. Corwine, 3 MacArth. 81. lagher, 20 Wall. 670, 680; Watt v. Starke, 101 U. S. 247; It may well be that uuder most circumstances what is Colie v. Tifft, 47 N. Y. 119; Birdsall v. Patterson, 51 said to a man to his face, which conveys the idea of id. 43; Vermilyea v. Palmer, 52 id. 471, 474. (2) The an obligation upon his part to the person addressing evidence, in reference to the agreement, was conflict- him, or on whose behalf the statement is made, he is ing, and the testimony of both the plaintiff and de- at least in some measure called upon to contradict or fendant, who were the principal witnesses in regard to to explain; but a failure to answer a letter is entirely the terms of the alleged agreement, was in conflict, different, and there is no rule of law which requires a and there was no such preponderance in the evidence person to enter into a correspondence with another in as would authorize a holding, as a matter of law, that reference to a matter in dispute between them, or a valid agreement was established by which the de- that silence should be regarded as an admission against feudant was bound to render an account to the plaint the party to whom the letter is addressed. Such a iff for profits made, or for one-half of the stock pur- rule would enable ove party to obtain an advantage chased by him by reason of such agreement. It is over another, and has no sauction in the law. Keen v. well settled, that under such circumstances, upon an Priest, 1 Fos. & Fiv. 314; Roe v. Day, 7 Carr. & Payne, appeal to this court, the facts are not reviewable. 705; Gaskill v. Skene, 14 Q. B. 664; Fenno v. Weston, Code Civ. Pro., $ 1337; Matter of Ross, 87 N. Y. 514. 31 Vt. 345; Allen v. Peters, 4 Phila. 84, distinguished. See also Vermilyea v. Palmer, 5% id. 471. Within this Ridley v. Gyde, 9 Bing. 349; Thorndike v. City of Bog. rule, under ordinary circumstances, the facts cannot ton, 1 Metc. 242; relate to the question of intent, and be reviewed upou appeal to this court. (3) An omis. have no application to the case at bar. Learned v. sion of one of the parties to a transaction to answer a Tillotson. Opinion by Miller, J. letter written to him, after the transaction by the [Decided Oct. 7, 1884.) other party thereto, giving the latter's version thereof, may not be taken as an admission of the truth of the statements in the letter; they are mere declarations UNITED STATES CIRCUIT COURT ABof the writer in his own bebalf, which do not de
STRACT.* mand an answer, and are not admissible as evidence against the person to whom the letter was sent. PATENT-INJUNCTION-NOT GRANTED TO UNITED The letter in question contained a statement of the
STATES-ACTION TO REPEAL-ACTION FOR INFRINGEplaintiff's claim against the defendant, and it is in
MENT.-This suit is brought by direction of the atsisted that it was admissible as a part of the res gesta.
torney general, to repeal letters-patent granting excluIf the letter is admissible and competent it must be
sive rights to in ventious, and has now been heard on a on the ground that it was a statement made by the
motion for a preliminary injunction to restrain complaintiff, which called for a response from the defend
mencement or prosecution of suits for infriugement. aut, and none having been given, the silence of the de- The patent has expired, and no injunction is asked fendant and his failure to make any reply to the same against assignment of the patent. The right to mainwas an admission of the accuracy of the statement
taiu such a suit is placed upon the same ground as made in the letter. The letter itself cannot be re
that to repeal a patent for land. United States v. garded as coming within the rule that where a state
Gunping, 18 Fed. Rep. 511. In a suit to vacate a patment is made at the time credit is given, as in an ac
ent for land it would hardly be claimed that the pattion for falsely representing the solvency of a stran- entee should be restrained from preventing, or proseger, proof may be given that the plaintiff trusted him cuting suits for trespasses to the land during the penin consequence of the misrepresentation or evidence dency of the suit. Such acts would work no injury to of declarations in kindred cases accompanying the acts
the title or property of the United States in question done, which constitute a part of the res gesta. Taylor
in the suit. The United States deals with the lauds as Ev., 8 685; Beaver v. Taylor, 1 Wall. 637; Milne v.
a proprietor, and brings such suits to be restored to its Leisler, 7 H. & N.986, 796. The question here discussed
proprietary rights. United States v. Schurz, 102 U. S. has been the subject of consideration in a recent de
378; United States v. Stone, 2 Wall. 525. Protection cision of this court. Talcott v. Harris, 93 N. Y. 567,
of the property would not impair those rights. In. 571. It was there said: “While a party may be called
fringement of a patent is a trespass upon the excluupon in many cases to speak wbere a charge is made
sive rights granted. The United States, as an owner against him, and in failing to do so may be considered
or proprietor, has no interest in promoting such tresas acquiescing in its correctness, his omission to
passes; and their prevention, or the prosecution of answer a written allegation, whether by affidavit or suits for their commission, cannot be an injury to the otherwise, cannot be regarded as an admission of the United States as a proprietor. If the patent is recorrectuess thereof, and that it is true in all respects. pealed the suits may fall, or may not; but whether Reasons may exist why he may choose and has a right to remain silent and to viudicate himself at some fu
they do or not is a matter entirely between the parties
to the suits, and not at all between the United States tore period, and on some more opportune occasion." and either of the parties. No reason for granting the We are unable to see why the case cited is not directly in point. The affidavits constituted a statement by
motion appears, and it must therefore be denied Cir.
Ct., S. 1). New York, Aug. 9, 1884. United States v. the plaintiff, which was not contradicted, no motion having been made to vacate the order of arrest, upon
Colgate. Opinion by Wheeler, J.
CONSTITUTIONAL LAW--EMINENT DOMAIN-DAMAGE the ground that the facts were not true, and no exception having been made to the same.
-CHANGE OF GRADE-INCORPORATION BEFORE ADOP
The facts are Fery similar in reference to the letter of the plaintiff
*Appearing in 21 Federal Reporter,
TION OF CONSTITUTION.-(1) The damage to property, out which it cannot perform its corporate functions. by the Constitution of Missouri, is placed upon the Smith Mero. Law, 133. It has neither the right uor same basis as the value of the property taken, and the power to change the corporate name originally sepeither can be done without compensatiou first made. lected without recourse to such formal proceedings This constitutional guaranty needs no legislative sup- for the purpose as may be authorized by the laws uuder port, aud is beyond legislative control. Johnson v. which it has been incorporated, or by the consent of Parkersburg, 16 W. Va. 402-422; S. C., 37 Am. Rep. the authority from which its cbarter is derived. 779; Blanchard v. City of Kausas, 16 Fed. Rep. 444; Nevertheless it may become knowu by another name Chambers v. Cincinnati R. Co., 69 Ga. 320; Thompson by usage; aud the courts have frequently treated acts v. Grand Gulf R., 3 How. (Miss.) 240; Oakley v. Wil- done and contracts entered into by corporations uuder liamsburgb, 6 Paige, 262; Gottschalk v. C., B. & Q. R., another name, as though done or entered into by it 14 Neb. 550 ; Mollandin v. U. P. R., 14 Fed. Rep. 394. with the true name. Minot v. Curtis, 7 Mass. 441; (2) When property is damaged by establishing the South Sobool-dist. v. Blakeslee, 13 Coun. 227; Eastgrade of a street, or by lowering or raising the grade ham v. Blackburu R. Co., 23 L. J. Exch. (N. S.) 199; of a street previously established, it is damaged for Boisgerard v. N. Y. Banking Co., 2 Sandf. Ch. 23. public use, within the meaning of the Constitution. Cir. Ct., 8. D. New York, Aug. 15, 1884. Goodyear Blanchard v. City of Kansas, 16 Fed. Rep. 444; Werth Rubber Co. v. Goodyear's Rubber Manfg. Co. Opinion v. City of Springfield, 78 Mo. 107. (3) That a city was by Wallace, J. incorporated under a special charter before the adoption of the Constitution of 1875, and its charter con
EMINENT DOMAIN-TRACK IN PUBLIC STREET--ABUTtinued in force, will not render the constitutional
TING LOT OWNER-DAMAGES ESTOPPEL.- Where a provision in respect to damages to property inopera
railroad company has, by consent of the municipal tive within the territorial limits of such city. Cir.
authorities, laid its track upon a public street, and Ct., W. D. Mo., Aug., 1884. McElroy v. Kansas City.
such occupancy permanently obstructs the use of the Opinion by Brewer, J.
street, not only by the public, but also by the occu
piers of abutting lots, in an action by the owners of TRUST--RESULTING-EXECUTOR PURCHASING TRUST such abutting lots against the railroad company for PROPERTY-FRAUD.-An executor who negotiates a damages, held, tbat they were entitled to recover full mortgage upon part of his decedent's estate, to
compensation for the depreciation in the value of provide funds for a child and devisee of such decedent, their property caused thereby. In estimating the cannot afterward purchase the mortgage land under damages the same standard was to be applied as in diforeclosure proceedings and hold it for himself. The rect proceedings by the railroad company to condemu quality of his estate therein will be a resulting trust for its use the private right of such owners in the for the benefit of the child for whom the mortgage was street. A recovery in this action will estop the own. made. Iu Michoud v. Girod, 4 How. 552, it was held ers from claiming that such occupancy was without that a purchase by an executor of the property of the their consent, and that full compensation had not testator is fraudulent and void, though the sale was at been made for it. Hatch v. C. & I. R. Co., 18 Ohio St. public auction, judicially ordered, and a fair price was 92, and was recognized in Railroad Co. v. Cobb, 35 id. paid; that a purchase by a trustee of a particular prop- 94; Railroad Co. Williams, id. 168; Railroad erty of which he has the sale, or in which he represents Co. v. Mowatt, id. 284; Railroad Co. v. Lawrence, another, or which he holds in a fiduciary way for 38 id. 41; and the right in such a case to recover for another, carries fraud on the face of it; aud Justice permanent injury to the adjacent property was disSwayne quotes with an emphatic approval the follow
tinctly decided in L. M. R. Co. v. Hambleton, to appear ing rule in equity from Sir Edward Sugden's chapter in 40 Ohio St. A. & G. W. R. Co. v. Robbins, 35 id. ou “Purchases by Trustees, Agents,'' etc.?
531, distinguished. Cir. Ct., S. D. Ohio, July, 1884. be laid down as a general proposition tbat trustees, Grafton v. Baltimore & Ohio R. Co. Opinion by
* ageuts, commissivvers of bankrupts, assignees Matthews, J. of bankrupts, solicitors to the commission, auction
JURISDICTION-FOREIGN CORPORATION - DESIGNA• eers, creditors who have been consulted as to the mode
TION OF AGENT ON WHOM PROCESS MAY BE SERVED.-of sale, or any persons who, by their comection with any other person, or by being employed or coucerned
The act of Congress prescribing the place where a perin his affairs, have acquired a knowledge of his prop
sou may be sued is not oue affecting the general juris
diction of the courts. It is rather in the pature of a erty, are incapable of purchasing such property themselves. * * For if such persons having a confi
personal exemption in favor of a defendant which he dential character were permitted to avail themselves
may waive; and when a foreign corporation, in pursu.
auce of the laws of a State in which it carries ou busi. of any knowledge acquired in that capacity, they
ness, designates a person upon whom process may be might be induced to conceal their information, and
served, it thereby conseuts to be sued in the district not to exercise it for the persons relying on their in
embracing such State, and waives the exemption tegrity. The characters are inconsistent." See also
granted to it under the act of Congress. Iu Ex parte Church v. Marine Ins. Co., 1 Mas. 341; Daroue v. Faile wing, 2 Jobus. Ch. 252. Cir. Ct., W. D. La., March,
Schollenberger, 96 U. S. 377, 378, the Supreme Court 1884. Alan v. Gillett. Opinion by Boarman, J.
says upon this subject: "A corporation cannot change
its residence or its citizenship. It can have its legal TRADEMARK
home only at the place where it is located, by or under ANOTHER CORPORATION CANNOT TAKE.-A corpora- the authority of its charter; but it may, by its agents, tion may acquire a property right to the use of a name transact business anywhere, unless prohibited by its other than its original corporate name as a trade
charter, or excluded by local laws. Under such cirmark, or as incidental to the good will of a business, cumstavces it seems clear that it may, for the purpose as well as an individual; and if it has acquired such a
of securing business, consent to be 'found' away from right, it cannot be deprived thereof by the assump- home, for the purposes of a suit, as to matters growing tion of such name subsequently by another corpora- out of its transactions. The act of Congress prescribtion, whether the latter selects its name by the act
ing the place where a person may be sued is uot one of corporators who organize under the general laws of
affecting the general jurisdiction of the courts. It is the State, or the came is selected for it in a special act
rather in the pature of a personal exemption in favor by a legislative body. The name of a corporation has of a defendant, and it is one which he may waive. If been said to be the “knot of its combination," with the citizenship of the parties is sufficient, a defendant
" It may
te functie he right to
Relawiora I consent
is derived other Created 12
may consent to be sued anywhere he pleases, and cer. GIFT — ACCIDENT POLICY - DONOR'S INTENTION tainly jurisdiction will not be ousted because he has CREDITORS.--A., in contemplation of leaving home,
cousented. Here the defendant companies have pro- purchased an accident insurance ticket, which by its proceedits rided that they can be found in a district other than
terms was uon-transferable under pain of forfeiture. that in wbich they reside, if a particular mode of pro. Before leaving home be laid the ticket on a table in ceeding is adopted, and they have been so found. In front of his wife, and said to her that she should our opinion therefore the Circuit Court has jurisdio- take it and take care of it, and if he got killed before tion of the causes, and should proceed to bear and de- he got back she would be $3,000 (the amount of the pol
cide them." Similar views are announced in Railroad icy, better off.” Held, that these facts were insufficient itions ord!
Co. v. Harris, 12 Wall, 65; St. Clair v. Cox, 106 U. S. to establish a gift of the ticket to A.'s wife as against
31-357; 8. C., 1 Sup.. Ct. Rep. 354; N. E. Mut. Life his creditors; that in order to establish such a gift it Mass. 4 Ins. Co. v. Woodworth, 111 U'. S. 146; 8. C., 4 Sup. Ct.
was necessary to prove that A. intended to part with Rep. 361. Like rulings have been made many times in both the possession and property of the ticket. Y. SE the various Circuit Courts. Cir. Ct., Dist. Cal., Aug. | Linsenbigler v. Gourley, 6 P. F. Smith, 166; Craw. df. (1 318, 1884. Gray v. Quicksilver Mining Co. Opinion by ford's Appeal, 11 id. 52; Trough's Estate, 25 id. 115. Good
William's Appeal. Opinion by Mercur, C. J. (See 30 Oplos
Alb. L. J. 386, 459.)
AT LAW. – A. filed a bill in equity Dune CONSTITUTIONAL LAW-ART. 9, $ 7-MUNICIPAL COR
against B., praying for injunction to reet, PORATION--ULTRA VIRES - JUDGMENTS -- SET-OFF.
strain repeated and threatened trespasses Municipal corporations have no power to purchase the upon certain alley way and parcel of land, he der
outstanding judgments or obligations of their credit- the title to which the bill alleged to be vested in A. ors for any purpose whatsoever, not even to set them B. filed an answer denying A.'s title to the premises off against the claims of said creditors. A. obtained in controversy. Held, that no special ground for jadgment against a borough; B., the treasurer of equitable relief being shown, the court had no juris. that borough, held a judgment against A., which was
diction in the premises until the rights of the parties subsequently purchased by said borough. The avowed should be established at law, and that therefore the purpose of this transaction was to use the borough ag
bill should be dismissed. Where the title to real esI means to collect B.'s judgment by way of set-off
tate is in dispute aud no special grounds for equitable against A.'s judgment. Hell, tbat this was a loan of
relief, such as irreparable damage or the like, are disthe credit of the borough within the prohibition of
closed, equity will not interfere by injuuction to rearticle 9, section 7, of the Constitution of Pennsylva- strain repeated and threatened alleged trespasses until nia, and hence that the proposed set-off is inadmissi.
the rights of the parties have been determined at law, ble. Early's Appeal. Opinion by Gordon, J
When thus determived, or when they are admitted in (Decided May 21, 1883.]
the pleadings, or otherwise clearly appear, an equity
based upou that right, superinduced by the acts of the COVENANT-EASEMENT
lief made. Thus equity is made the means not of estabple, subject to the reserved right in the grantor to all die
lishing the legal right, but of giving adequate protec the coal underlying the same, does not bind the covenantee to accept a deed when the property is subject irreparable injury has been shown, and it does not yet
tion in the enjoyment of it when thus established. No to certain easements and incumbrances not mentioned in the agreement, although the deed by the grantor to
appear that a multiplicity of suits must result under proDI
ceedings at law; all parties in interest may be put upon a third party creating the ensements and incumbrances
the record in a single suit, and non constat that the was on record at the time the covenant was entered
trial and determination of that suit may not end the into. Withers v. Atkinson, 1 Watts, 236; Stitzel v. Kopp, 9 W. & S. 29. (2) It is the duty of the court; if any equity is superinduced by the act of the parties,
controversy: the right to equitable relief may follow and not of the jury, to construe a written contract; it would have been error to submit
but the interference of equity in such a case rests, as
$0 the jorg the question whether the defendant had orally Newburgh, 2 Johus. Ch. 164, “ on the principle of a
stated by Chancellor Kent in Gardner v. Village of agreed to purchase from the plaintiff subject to the
clear and certain right to the enjoyment of the subrights of a third party, when there was neither allega- ject in question, and tion nor proof of a mistake or omission in the written
tion of that right, which upon just and equitable contract. Pegg v. Rist. Opinion by Trunkey, J. (Decided March 3, 1884.]
grounds ought to be prevented.” To the same effect
are the cases of North Penn. Coal. Co. v. Suowder, 6 MUNICIPAL CORPORATION-STREETS-NEGLIGENCE. Wright, 488; Norris' Appeal, 64 Penn. St. 275; Tillmes A township is not an insurer against all defects or v. Marsh, 67 id. 507; Haines' Appeal, 73 id. 169; and obstructions, latent as well as patent, in the public Grubb's Appeal, 90 id. 228. In Rhea v. Forsyth, 1 bighways. Where the owner of adjacent property ran Wright, 503, Mr. Justice Woodward, after a review of a small gaspipe under a highway in such a manner the cases, concluded as follows:
From these and that the same was exposed at the bottom of the gut- many more authorities, which might be cited to the ters, and after remaining there about six weeks said same effect, it is apparent that where the plaintiff's pipe was brokou at the point where it traversed the right has not been established at law, or is not clear, zutter by the deviation of a passing team, and within but is questioned on every ground on which he puts it, an hour afterward a person passing with a light was not only by the answer of the defendant, but by proofs njured by an explosiou of gas escaping from the frac- in the cause, he is not entitled to remedy by injuncfored pipe, the township is not liable for the injury, tion. It is not enough that he is able to produce some there being no evidence that the towuship authorities evidence of his right, where there is conflicting eri. bad ang knowledge of the existence of the pipe up to dence that goes to the denial of all right. When the the time of the accident.
Otto Township v. IVolf. emergency is pressing, and the injunction affidavits Opinion by Paxson, J. (See 30 Alb. L. J. 424.)
disclose a prima facie right in the plaintiff, the proper practice, I apprehend, is for the court to interfere by
[Decided June 9, 1884.)
special injunction, and stay the defendant's haud until the right has been tried at law." Even in cases confessedly within the jurisdiction, as partition, equity will not interfere if the complainant's title be denied until he has vindicated it at law; the court may retain the bill however until that has been done. 2 Aik. 280; Coxe v. Smith, 4 Johns. Ch. 271; North Penn. Coal Co. v. Snowden, supra. Washburn's Appeal. Opinion by Clark, J. [Decided April 7, 1884.]
JOWA SUPREME COURT ABSTRACT.
LIMITATION--ADVERSE POSSESSION-TAX DEED BY GOVERNMENT. --In 1838 and 1862, lands, the title to which was still in the United States, were taxed to unknown owners, sold, and tax deeds issued therefor to A., who went into possession of a part of the tract, and subsequently quitclaimed the laud to B., who has continued in possession, cultivating a part of the land, and resting his claim to the whole upon his tax deed. In 1871 the United States certified this tract and others to the Chicago, Rock Island & Pacific Railroad Company, who more than ten years after it had acquired title brought an action against B. to quiet title. Held, that B.'s possession was adverse as to the whole tract, and that the action was barred by the statute of limitations. The defendant and his grantor claim title under the tax deeds. They were invalid, void, on the ground that the officers of the county bad no authority to convey the land, for the reason that it was not taxable. But their invalidity for this reason does not prevent them being regarded as the foundation for a pretense, show, appearance, color of title. Whatever may be the source of the invalidity of a deed, if it purports to convey land, and “in form possess what purported to be the title, it gives color of title.” Hall v. Law, 102 U, S. 461; Rigor v. Frye, 62 Ill. 507; Hinkley v. Greene, 52 id. 223; Molton v. Henderson, 62 Ala. 426; Edgerton v. Bird, 6 Wis. 527: This court has held that a tax deed void upon its face constitutes color of title, upon which the statute of limitations may be invoked. Colvin v. MoCune, 39 Iowa, 502. It is iusisted that as the statute does not run against the government it cannot run against plaintiff. It may be observed that there is no provision of law declaring that a citizen cannot hold adversely to the government, or hold a color of title against it. It is true that a citizen cannot invoke the statute of limitations against the government. But this does not authorize us to presume against facts that defendant did not hold the land adversely and under claim or color of title before the government certified the land to plaintiff. The truth is he did so hold, but as against the government it would not avail as a defense. But there is no law which forbids a citizen to hold land in that way against the grantees of the goverument. When the certification of the land was made the statute began to run. The fact that defendant's prior possession could not have aided him to plead the statute against the goverument is no reason why he cannot plead his possession held after plaintiff acquired title. If defendant's possession began after plaintiff acquired title, it cannot be doubted he could do so. As against plaintiffs, de. fendant's possession did begiu afterward, As the statute has seen its full time since that event, the action is barred. See upon this point La Frombois y. Jackson, 8 Cow. 589. The evidence clearly shows that defendant in good faith entered upon the land and held it uuder claim of right, and as we have seen, color of title. His possession was hostile and adverse to plaintiff's title. He cultivated a part of the land as bis own, in good faith, resting his claim to the whole upou the tax deeds. The law will presume him to be
in possession of all the land within the boundaries, as prescribed by his title. The rule would not apply did the plaintiff have possession of the part defendant did not cultivate; in that case the presumption would not exist as to the land held by plaintiff. But no such state of facts is in the case; plaintiff at no time held possession of any part of the land. Upon this point see Langworthy v. Myers, 4 Iowa, 18; Hunnicutt v. Peyton, 102 U. S. 333; Teabout v. Daniels, 38 Iowa, 158; Anderson v. Darby, 1 Nott & MoC. 369; Eifert v. Read, id. 374; Bailey v. Carleton, 12 N. H. 9; Little v. Megquier,2 Me. 176: Cluggage v. Duncan, 1 Serg.& R.111; Lynde v. Williams, 68 Mo. 360; Norfleet v.Hutchius,id. 597 ; Scott v. Delany, 87 I11., 146; Colewan v. Billings, 89 id. 183; Tritt v. Roberts, 64 Ga. 156; Humpbries v. Huffman, 33 Ohio St. 395. Chicago, etc., R. CO. V. Allfree. Opinion by Beck, J. [Decided Oct. 9, 1881.)
NEGLIGENCE PASSENGER ATTEMPTING LEAVE MOVING TRAIN CONTRIBUTORY. senger
train that reached his destina tion about midnight failed to get off because he was asleep, and after the train had started a brakeman asked him he did not intend to get off at that station, and that if he did he “had better be getting off quick," upon which he went out on the platform of the car, and stepped down on the second or third step to look out for the depot, as he claimed, when the train gave a sudden jerk, and he was thrown to the ground and injured. Held, that he was guilty of contributory negligence, and not entitled to recover damages. It seems to us that when the jury found that the plaintifi was in a dangerous position when on the steps, it must logically follow that he cannot recover, and the jury should have so found. This is a stronger case against the plaintiff, in our judgment, than Bon v. Railway Pass. Assur. Co., 56 Iowa, 669; S. C., 41 Am. Rep. 127. There are cases where a passenger is justi. fied in taking risks, where by the negligence of the company he is in danger of being carried beyond his destination, and we are not prepared to say a passen: ger would not be justified in making the attempt to step from the train if it was moving slowly; that is, it would be a question for the jury. Lindsey v. Chi. cago, etc., R. Co. Opinion by Seever, J. (See 71 N. Y. 489; 19 Eng. Rep. 231: 8 Am. Rep. 508; Secor v. Toledo, etc., R. Co., 10 Fed. Rep. .-ED.) (Decided Oct. 7, 1884.]
PARTNERSHIP -- ASSIGNMENT TO ONE CONSIDERATION-RELEASE.--Where the property of a partnership is transferred to one of the partners for his benefit for a valuable consideration, he may hold it free from partnership debts. City of Maquoketa v. Willey, 35 Iowa, 323. See also as bearing upon this point Scudder 8. Delasbmut, 7 id. 39; Hawkeye Wooleu Mills v. Conklin, 20 id. 422. An agreement between the members of a partnership and one of their number, that if he will remain in the firm they will pay his pri. pate indebtedness, shows a valuable consideration; and the payment to a bank of this indebtedness held not fraudulent as to creditors. Where a debt is paid its securities are released. George v. Wamsley. Opivion by Beck, J. (See 15 Neb, 476.] [Decided June 12, 1884.]
ANIMAL-INJURY FROM BITE OF DOG—"OWNER."-In an action to recover damages for personal injury caused by being bitten by a dog, it is not error to in. struct the jury that if the defendant had the dog iu his possession, and was harboring him on his premises as owners usually do with their dogs, then he was the owner within the meaning of the statute; but if the dog was casually on his premises, and not being barbored by defendant as owners usually harbor their
dogs, then he was not the owner; and that in deter- name and nature betweeu said company and myself mining how this was at the time of the alleged attack, up to date of this obligation. Renatus Heller. Queen they would consider defendant's former treatment of City Fertilizing Company, H. Moran.” B. took said of the dog, his declarations concerning him, and the note before maturity for value without notice of any habit of the dog as to staying at defendant's place. defense. Upon a suit on the same by B. against A., O'Hara v. Miller. Opiniou by Beck, J. (See 1 Denio, | held, that the court could not say as matter of law 495; 15 Gray, 193.)
that the note was not properly indorsed, and was not (Decided Oct. 9, 1884.]
negotiable. It was held in Ege v. Kyle, 2 Watts, 222, that au indorsement on a negotiable note of a receipt
on account of a quantity of iron, “the net proceeds of RECENT ENGLISH DECISIONS.
which are to be credited ou the within," and which
were afterward credited on it by indorsement, did MORTGAGE POWER
not destroy its negotiable character. The usual form SALE – ATTORNEY AND
of indorsement is by writing the name of the indorser coutaining a power of sale without the usual proviso
across the back of the note, Where the note is pay. that the power of sale should not be exercised unless
able to order, any order in writing is sufficient, which there was default in payment of the principal after six
shows an intent to pass the title. Thus "I give this mouths' uotice, or some interest should be in arrear for
Dote to A. George Chaworth” was held to be a sufthree months. This omission was not brought to the
ficient indorsemeut. Chaworth v. Beech, 4 Ves. 555.
Aud where the indorsement is in the form of a guarmortgagor's notice. The mortgagee (without notice) sold part of the property at a time when interest was
anty, it has been held sufficient. Partridge v. Davis, 20 in fact three mouths in arrear, and other part when
Vt. 499; Upham v. Priuce, 12 Mass. 14; Myrick v. some interest was in arrear less than three months.
Hasey, 27 Me. 9; Childs v. Davidson, 38 III. 438; WatThe mortgagor brought an action against the mortga
son v. McLaren, 19 Wend. 557. Sup. Ct. Penn., April, gee, claiming damages for wrongful sales. Held, that
1883. Dunning v. Heller. Opinion by Paxson, J. both the sales were wrongful as between the mortgagor and mortgagee, but the first sale not being at an
CRIMINAL LAW. ondervalue, the court gave the mortgagor no damages in respect of it. The second sale, though not improp- LARCENY - DESCRIPTION OF OWNER. — In an inerly couducted, was shown to have been in fact at au dictment for larceny, a description of the person from undervalue, and the court gave damages in respect of whom the property is alleged to bave been stolen, is it. Ch. Dir., July 8, 1884. Cradock v. Rogers. Opinion sufficient, if a name is given by which he is well known, by North, J. [51 L. T. Rep. (N. S.) 191.)
even though bis real name is different. Sup. Ct. Cal., TRUSTEE REMOVAL
March, 1884. People v. Woods. Opinion by Ross, J. (3 MISCONDUCT. - It is the duty of a court of equity to see that trusts are properly
Pac. Rep. 466.) executed, and therefore, even though no charge of RECEIVING STOLEN GOODS-EVIDENCE ACCOUNT misconduot is made out against a trustee, the court GIVEN BY THE PRISONER-EVIDENCE TO NEGATIVE. will remove him if satisfied that his continuance iu of- On an indictment for receiving goods, kuowing them fice would be detrimental to the proper execution of to have been stoler, the prisoner's account being that the trusts. Friction or hostility between the trustee he had purchased them of a tradesman in the same and the immediate possessor of the trust estate is not town, other circumstances in the case tending to negaof itself a reason for the removal of the trustee, but it tive it, though the tradesman was not called for the will not be disregarded by the court when grounded on prosecution, held, that it was not necessary to call the mode in which the trust has been administered. him on the part of the prosecution, there being other Judgment of the court below affirmed with a varia- circumstances in the case from which the jury might tion. Jud. Com. Priv. Com., March 22, 1884. Letter- fairly infer the falsehood of the prisoner's story. Crown stedt v. Broers. Opinion per Curiam. [51 L. T. Rep. Cas. Res., June 28, 1884. Reg. v. Ritson. Opinions by (N. 8.) 169.)
Grove, Hawkins, Stephen, Watkin Williams, and
Mathew, JJ. (50 L. T. Rep. [N. S. ] 727.)
FALSE PRETENSES-OBTAINING GOODS BY-PROOF
THAT THE GOODS WERE DELIVERED ON THE FAITH OF. NEGOTIABLE INSTRUMENT-PROTEST — WAIVED BY
-On an indictment for obtaining goods by false prePAROL.-Protest of a note may be waived either by a tenses, the false pretense charged and proved being writing or by parol. A waiver of "protest” of a note that the prisoner was daughter of a lady of the same by an indorser before maturity releases the holder name, residing at a certain place, there being no evifrom the necessity of making demand and of sending dence that the goods were not delivered to the prisoner notice of non-payment. Huckeustein v. Herman, 34 before her name and address were asked for, held, Leg. Int. 232 ; Scott v. Greer, 10 Penn. St. 103; Brit- that there was no sufficient evidence to sustain the inlain r. Doylestown Bauk, 5 W. & S. 87. Sup. Ct.
dictment, it being essential on a prosecution for obPeun., May 19, 1884. Annville National Bank v. Ket- taining goods by false pretenses to prove that the tering. Opinion by Sterrett, J. (15 W. Notes, 65.) goods were delivered on the faith of the false pretense NEGOTIABLE INSTRUMENT-INDORSEMENT.-A. ex
charged. Crown Cas. Res., June 28, 1884. Reg. v. ecuted a promissory note in the following form:
Catherine Jones. Opinions by Grove, Hawkins, "Dorrance, February 23. 1880. Six months after date,
Stephen, Watkin Williams, and Mathew, JJ. (50 L. T. I promise to pay to the order of myself $192 at First
Rep. (N. S.) 726.) National Bank at Hazleton, Penn., value received with INDECENT EXPOSURE-PUBLIC PLACE.-The crime of Use. Renatus Heller;" and indorsed, “I hereby cer- indecent exposure is committed if a person intentiontify that I own and am worth in personal and real es- ally make such exposure in the view from the windows tate in the county of Luzerne, State of Penn., $4,000, of two neighboring dwelling-houses.
It is not necesover and above all indebtedness, and that the within sary that any person should actually see such exposure obligation is given for goods bought by me of the if it was made in a public place with the intent that it Queen City Fertilizing Company, and the same is in should be seen, and persons were there who could full settlement of all claims and demands of every have been if they had looked. If it were the law