of such persons on the train as had
procured them before, entering the
train. He stopped at all the way
stations between Rochester and
Syracuse; and he carried all pass-
engers, male and female; and no
special application was necessary to
obtain a seat in the passenger car.
In short, though the main business
of the train was to carry cattle, it
was a part of its regular business,
daily, to carry such passengers as
applied. Held that whatever the
company chose to denominate this
train, it was really a freight and
passenger train. Dillaue v. The New
York Central Railroad Company,

30

7.

If the land remaining is rendered
less valuable because it is more ex-
posed to fire; or if access to it is
rendered more difficult; or if the
use of the remainder is more incon-
venient by reason of the railroad;
or if its value is depreciated by the
noise, smoke, or increased dangers
caused by the use of the railroad-
all these circumstances are to be
included in the estimate of dam-
ages.
ib

8. The question, in such a case is, what
is the market value of the entire lot,
without the railroad, and what is the
market value of the remainder there-
of with the railroad; or, in other
words, what is the value of the piece
which is taken, and how much is the
residue depreciated in its market
value by the separation, and by the
construction of the railroad; which
two sums, added together, is the
amount to which the owner is en-
titled.

ib

9. The increase of risk by fire from
locomotives, if any, is properly in-
cluded in the estimate of damages
for land taken for a railroad. ib

10. Under the provision of the general
railroad act, requiring commission-
ers of appraisal to ascertain and
determine the compensation which
ought justly to be made by the com-
pany to the person or persons in-
terested in the real estate appraised
by them," the compensation is not
confined to the value of the land
actually taken, nor to the depre-
ciation of the residue by the separa-
tion of the other part from it; but
it is the compensation which ought
justly to be made to the owners of
the real estate appraised by them---
compensation for all the injury that
the taking of the land, for the pur-
pose intended, will cause them. ib

11. Although one land owner has no
right to damages caused by the law-
ful use of the lands of another ad-
joining his, whether by a railroad
company or otherwise, yet neither
the legislature nor the courts can
authorize the taking of a portion of
his property for a use which will be
injurious to the residue from which

4. Where the terms of a release were
that one party released and assigned
to the other "all claims upon the
estate of P. H.," which she had " of,
in and to the estate, real and per-
sonal, of P. H., deceased," except
certain personal property; Held that
there was no limitation of the claims
assigned and released, except that
they were such as the releasor had
against the estate (real or personal)
of P. H. And that it was com-
petent to prove by parol, in aid of

the construction of the instrument,
admissions of the releasor as to the
payment of a claim of $1000, the
ultimate liquidation or reimburse-
ment of which was to come from the
proceeds of the real estate, and
which the parties had treated as a
claim upon the real estate, although
it was not strictly of that nature, in
a legal sense; and that the parties
had reference to it in the language
which they used.
ib
5. Held, also, that no contradiction or
enlargement of the scope of the
release was produced, or any vio-
lence done to its language, by show-
ing that in fact the parties intended
to include the $1000 claim.

See EVIDENCE, 6.

RELIGIOUS CORPORATIONS.

ib

1. In the absence of any statute author-
izing actions in favor of a religious
corporation to be brought in the
name of its president, the president
of such a corporation cannot sue
upon a claim in its favor, in his own
name. Lowenthall v. Wiseman, 490

2. The designating himself as the pres-
ident of the society will not aid
him; it being well settled that such
an addition is a mere description of
the person.
ib

REPLEVIN.

See BAILMENT, 4, 5, 6.

S

SALE.

See AGREEMENT, 1, 3.
INSURANCE, (FIRE,) 1, 2.

SHIPPING BILL.

See CONSIGNOR AND CONSIGNEE, 1, 2.

SHIPS AND SHIP OWNERS.

1. It is the owner or charterer of a
ship or vessel, only, who is exempted

from liability for a loss occasioned
by fire without fault, by the act of
congress of March 3, 1861, "to limit
the liability of ship owners," &c.
Rice v. The Ontario Steamboat Co., 384

2. A steamboat company, receiving
goods at Oswego, to be transported
to Montreal, and carrying the same
to Ogdensburgh and there transfer-
ring them to a boat owned by other
parties, to be carried the remainder
of the distance, under a general
arrangement between them and the
company, to forward freight for the
company, is not the owner or char-
terer of such boat, within the letter
or spirit of the act of congress, so
as to be entitled to claim the ex-
emption provided therein for losses
occasioned by accidental fire. ib

See CONSIGNOR AND CONSIGNEE.

2. He could prove the general bad
character of the plaintiff, and any
circumstances which, at the time
the words charged were spoken, were
calculated to irritate and excite the
defendant, and provoke him to the
utterance of the words complained
of; but it is no answer to the plain-
tiff's claim for damages for slander,
that he has said or done anything
against the defendant, whether ac-
tionable or not, for the purpose of
reducing such damages; unless such
act or declaration actually excited
the defendant to use the words
charged against him.

ib

8. But, while it is true that a defendant
may not prove an isolated act or
declaration of the plaintiff, however
aggravating, which took place at
some time anterior to the speaking

4.

of the slanderous words, in mitiga-
tion thereof, and which, if proved,
would legally show that the de-
fendant, instead of being excited
thereby, at the time of uttering the
words charged, was rather actuated
by a spirit of revenge; still, it does
not follow that the defendant cannot
prove a series of provocations, on the
part of the plaintiff, commencing
long anterior to the speaking of the
words charged; provided they are
continued from time to time down
to and at the time the actionable
words are uttered.

ib

In such a case, each successive rep-
etition of the provocation must
necessarily become more annoying
and exciting; and although there be
no motive or spirit of revenge, on
the part of the defendant, the ex-
citement, at each repetition of the
provocation, becomes more intense
and unbearable, and presents a
much stronger case of mitigation
than when the actionable words are
uttered upon the first provocation
which he receives. Per FOSTER, J. ib

5. But it must appear, in order to
make such testimony competent,
that the provocation was continued
down to and at the time the words
were spoken.
ib

STAMPS.

1. Notwithstanding the internal reve-
nue act of congress required all
stamps to instruments theretofore
issued, to be affixed by the collector
of internal revenue, it did not de-
prive the state courts of the power
vested in them by virtue of section
327 of the Code, which provides that
"when a party shall give, in good
faith, notice of appeal from a judg-
ment or order, and shall omit,
through mistake, to do any other act
necessary to perfect the appeal, or to
stay the proceedings, the court may
permit an amendment, on such terms
as may be just." MULLIN, J., dis-
sented. Coppernoll v. Ketcham, 111

7. It seems that congress had as much
right to provide for the forum to
which the question of good faith
should be submitted for decision,
and to determine whether the instru-
ment should be made valid, as it had
to declare that without a stamp it
should be void; and when it has
declared that the omission may at
any time, within a year, be obviated
by a particular officer of its own ap-
pointment, no court can stand in the
place of the legislature, and author-
ize it to be made valid in any other
way.

ib

2. A thing may well be within the spirit
of a statute although not within the
letter; or it may be within the letter
and yet not within the spirit of it.
And, as a general rule, where a stat-
ute is intended to abrogate a com-
mon law right, or to confer a right
not vested by the common law, it
will be so construed as not to go be-
yond the letter; and not even to that
extent, unless it appears to be ac-
cording to the spirit and intent of
the act. Per FOSTER, J. Dewey v.
Goodenough,
54

3. Revenue and duty acts are not penal
acts and to be construed strictly;
nor are they, on the other hand, acts
in favor of private rights and liberty,
and therefore to be construed with
extraordinary liberality. They are
to be construed according to the true
import and meaning of their terms;
and the legislative intention, when
ascertained, is to be the guide in in-
terpreting them. Davy v. Morgan,
218

See AGREEMENT, 8.
ASSESSMENT, 1.

COMMISSIONERS OF HIGHWAYS.
INTERNAL REVENUE, 1

TAXES, 1.

TELEGRAPH COMPANIES, 1, 2.

STEAMBOATS.

See NEGLIGENCE, 5.

STOCK.

1. The plaintiff employed a broker to
procure a loan, for him, upon stock.
The broker applied to the defendant,
who refused to make a loan, After

informing the plaintiff of such re- | 2.
fusal, the broker went a second time
to the defendant, who then said he
would buy the stock. The plaintiff,
being told by the broker that the
only way he could get the money
was to sell the stock, said he would
sell it. The broker and the plaintiff
then went to the defendant's office,
and made a sale of the stock to him,
and a bill of sale was executed, and
the money paid. It was then agreed
that if the plaintiff brought the
money back in ten days, the defend-
ant would return the stock. The
money not being repaid, or tendered,
within the ten days; it was held that
an action would not lie, against the
defendant, to recover damages for a
conversion of the stock. BRADY, J.,
dissented. Woodworth v. Morris, 97

1. The defendants, who were bankers,
after having had notice that certain
U. S. government notes had been
stolen from the plaintiff, purchased
the same, before they were due, in
the ordinary course of business, pay-
ing full value therefor, without rec-
ognizing them as being the same
notes which had been stolen, having
forgotten the notice of the theft and
the description of the notes which
had been furnished them. Held that
it was a question for the jury to de-
cide, whether the defendants pur-
chased the notes bona fide. Lord v.
Wilkinson,
593

3.

Held, also, that under these circum-
stances, the defendants were not en-
titled to have a verdict directed in.
their favor; but that the court, in
charging the jury that "the defend-
ants, once having had notice, were
bound by it, although the notice
might have been forgotten; and that
they could not, under the circum-
stances of the case, be purchasers
in good faith, although" &c., charged
too broadly.
ib

In such a case, it is necessary to
prove more than negligence in tak-
ing the paper. Fraud-mala fides-

must be shown. The circumstance
of the purchaser forgetting, or omit-
ting to look for, the notice of the
theft, is no evidence of mala fides. ib

STREETS.

SUPERINTENDENTS OF THE

POOR.

SURROGATE.

See WILL, 4, 5.

T

TAXES.