conclusion. She, considering the proposition for an exchange of lands
accepted, took possession of the 25 acre tract with her husband, and
made valuable improvements upon it, and has remained in possession
ever since. The railway company, who had previously been permitted
to lay a track across the land for temporary use, took possession of the
27% acres and made improvements thereon.
70
In June, 1878, at a meet-
ing of the directors of the company, the president presented a form
of deed to Mrs. M. of 25 acres in exchange for the 2% acres at the
landing, and asked for instructions. It was then resolved that an
exchange of said lands be made and the deed executed to Mrs. M.
whenever the land to be conveyed by her was released from a tax
claim thereon. A deed from her and her husband of the 2,7% acres
had previously been executed to the company and sent to its officers.
After this resolution of the board, proceedings were taken by her for
the release of the tax claim mentioned in it, which was accomplished,
under the advice of the attorney of the company, by purchasing in the
property upon the sale made for such alleged tax. A deed was then
demanded of the company for the 25-acre tract, and being refused,
the present suit was brought for the enforcement of the contract.
the 24th of January, 1880, the Kansas Pacific Railway Company had
become consolidated with the Denver Pacific Railway and Telegraph
Company, and the Union Pacific Railway Company, under the name
of the latter. By the articles of consolidation all the property of the
constituent companies was conveyed to the new company, with a dec-
laration that the assignment and transfer were made "subject to all
liens, charges and equities pertaining thereto." Previous to this
transfer and consolidation, and in May, 1879, a mortgage was made
by the Kansas Pacific Company of its property, including the 251-acre
tract, to Gould and Sage as trustees; Held, (1) That the resolution of
the Board of Directors of June 28, 1878, was a ratification in part of
the negotiations for the exchange of the two tracts, and Mrs. M. hav-
ing accepted this action, it is not valid ground of objection by the
Kansas Pacific Company to the enforcement of the contract that it
called for less than was originally agreed upon; (2) that the taking
possession of the tracts by the parties pursuant to the contract and
continuing in possession and making improvements thereon constitute
part performance of such contract sufficient to take it out of the Stat-
ute of Frauds and authorize a deeree for full performance; (3) that
the obligation of the Kansas Paeific Company to execute a conveyance
to Mrs. M. passed to the defendant company upon the consolidation
mentioned and the transfer to it of the property of the Kansas Pacific
Company; (4) that the trustees under the mortgage of 1879 took
the property with notice of the rights of Mrs. M., and subject to their
enforcement. Union Pacific Railway Co. v. McAlpine, 305.
3. Prior to the expiration, June 30, 1877, of a written contract with a rail-
road company for carrying the mails, the Postmaster General, acting
under provisions of law, notified the company in writing that from
the day of that expiration to a day which made a term of four years,
the compensation would be at rates named in the notice, "unless
otherwise ordered." The company transported the mails, and ac-
cepted the pay therefor at those rates, without objection. On the 1st
of July, 1878, the Postmaster General reduced the rates five per cent
under the provisions of an act of Congress to that effect. The com-
pany made no objections to this, and continued to transport the mails
for the rest of the term of four years, and received pay therefor at
the reduced rates. They then brought suit to recover the amount of
the reduction made after July 1, 1878: Held, (1) That there was no
contract to carry the mails for four years at fixed rates; (2) that the
company might have refused to transport them at the reduced rates;
(3) that its failure to do so and the absence of a protest constituted
an assent to the rates fixed by the reduction. Eastern Railroad Co.
v. United States, 391.
4. The law of a place where a contract is made governs its nature, obliga-
tion and interpretation, unless it appears that the parties, when enter-
ing into the contract, intended to be bound by the law of some other
country. Liverpool and Great Western Steam Co. v. Phenix Insurance
Co., 397.
5. A contract of affreightment, made in an American port by an American
shipper with an English steamship company doing business there, for
the shipment of goods there and their carriage to and delivery in
England, where the freight is payable in English currency, is an
American contract, and governed by American law, so far as regards
the effect of a stipulation exempting the company from responsibility
for the negligence of its servants in the course of the voyage. lb.
6. By a written agreement between two parties, one acknowledged that he
was indebted to the other in the sum of $70,000, "over and above all
discounts and set-offs of every name and nature;" and it was stated
that the latter was to take up and satisfy certain other indebtedness
of the former, and that the former had conveyed to the latter a stock
of goods and store-fixtures, notes, books and accounts, and a piece of
land, "with power forthwith, at such times and in such manner as "
the latter should "deem best, to convert the said goods," "fixtures,
notes, accounts and premises into money, and apply the proceeds to
the payment of said indebtedness," with interest, and also a certain
farm; and it was agreed that if the former should, within six months
from date, pay said indebtedness, the latter would reconvey the farm,
but, in default of such payment, might foreclose "the certain mort-
gage comprised in " the conveyance of the farm and the agreement.
The conveyances mentioned in the agreement were made, and the title
to the piece of land and the farm and the right to the indebtedness,
came into the hands of the plaintiff, who sold the land, and brought
this suit in equity against the original debtor for an account of the
amount due on the security of the farm, and for a foreclosure of the
debtor's equity of redemption in the farm; Held (1) The debtor could
not go
behind the agreement fixing the debt at $70,000 because there
was no sufficient evidence to impeach it, on the ground that his signa-
ture was obtained by fraud or duress, or without his full knowledge
of its provisions and consent to its terms; (2) the debtor was entitled
to be credited only with the sums realized by the creditor from the
sale of the personal property and piece of land, and not with sums
estimated, by testimony, as their value at the time of the agreement;
(3) under the statute of Illinois, where the transaction took place,
the creditor was entitled to interest on the $70,000 from the expiration
of the six months, and on the amount paid by him on the other in-
debtedness from the time of paying it; (4) the amount of a mortgage
given by the creditor on the farm was to be credited to the debtor and
paid by the farm. Goodwin v. Fox, 601.
See COMMON CARRIER;
DEED, 6;
1. A stockholder in an insolvent corporation, who has paid his stock sub-
scription in full by a transfer of a tract of land, in good faith, at an
agreed value, for the use of the company's business, is not liable in
equity to a creditor of the corporation who had knowledge of and
assented to the transaction at the time when it took place, solely upon
the ground that the land turned out to be of less value than was
agreed upon. Bank of Fort Madison v. Alden, 372.
2. The doctrine that the distribution of a trust fund of a corporation to
the individual stockholders upon their resolution does not deprive a
creditor, not consenting thereto, of his right to compel the application
of the fund to the payment of the debts of the corporation, cannot be
invoked by a creditor who is a stockholder consenting to the distribu-
tion and participating in the appropriation. Ib.
3. An indorsement of the note of a third party by one member of a part-
nership in the firm's name, by way of security to a bank, without the
knowledge or consent of the other partner, cannot be enforced as a
liability against the estate of the latter after his decease. Ib.
When the judgment below is reversed in this court for want of jurisdiction
in the Circuit Court, the plaintiff in error is entitled to his costs in
this court. Chapman v. Barney, 677.
COUNTER-CLAIM.
See COMMON CARRIER, 1 (2).
In ejectment, the question whether the tract in dispute is within the boun-
daries of a grant of public land is to be determined by the jury on
the evidence as explained by the court. Pinkerton v. Ledoux, 346.
COURTS OF THE UNITED STATES.
See COMMON CARRIER, 4;
JURISDICTION.
1. The crop ends of Bessemer steel rails are liable to a duty of 45 per cent
ad valorem, as "steel," under Schedule C of § 2502 of the Revised
Statutes, as amended by § 6 of the act of March 3, 1883, c. 121, 22
Stat. 500, and are not liable to a duty of only 20 per cent ad valorem
as "metal unwrought," under the same schedule. Robertson v. Perkins,
233.
2. Under the practice in New York, allegations in the complaint, that the
plaintiff "duly" protested in writing against the exaction of duty, and
"duly" appealed to the Secretary of the Treasury, and that ninety
days had not elapsed, at the commencement of the suit, since the
decision of the Secretary, if not denied by the answer, are to be taken
as true, and are sufficient to prevent the defendant from taking the
ground, at the trial, that the protest was premature, or that the plain-
.tiff must give proof of an appeal, or of a decision thereon, or of its
date. lb.
1. The propriety and legality of the imposition of punitive damages for a
violation of duty have been recognized by repeated judicial decisions
for more than a century. Minneapolis and St. Louis Railway v.
Beckwith, 26.
2. This court holds that in stock transactions between a stockbroker and
his principal, in which the principal suffers from the neglect of the
broker to execute orders, either for the sale of stock which he holds
for the principal, or for the purchase of stock which the principal
orders, is, not the highest intermediate value up to the time of trial,
but the highest intermediate value between the time of the conver-
sion and a reasonable time after the owner has received notice of it;
in this respect disregarding the rule adopted in England and in several
of the States in this country, and following the more recent rulings
in the Court of Appeals of the State of New York. Galigher v.
Jones, 193.
1. When the proof is conflicting upon the point of undue influence ex-
erted upon one making provision by deed in favor of the person alleged
to have exerted the influence, and it appears that the contestant, hav-
ing full knowledge of all the circumstances, made no averment in his
original bill of the incapacity of the grantor, and did not raise that
issue until an amended bill was filed a year later, that fact is entitled
to weight in determining the case. Ib.
2. When incapacity caused by drunkenness is alleged as a cause for an-
nulling a deed, the vital inquiry is as to the capacity of the grantor
when the deeds were executed, and not as to his capacity when
drunk. Ralston v. Turpin, 663.
3. Section 2666 of the Code of Georgia, relating to gifts made to a guar-
dian by a minor just after arriving at majority does not apply to the
case of a deed or will in favor of his guardian made by a person some
years after arriving at his majority; but even if it did apply, such a
deed would be good if made with a full knowledge of the facts, and
without any misrepresentation or suppression of material facts by the
guardian. 1b.
4. As the record in this case discloses nothing impeaching the final settle-
ment made between the guardian and his ward, § 1847 of the Code of
Georgia does not apply to it. Ib.
5. Section 3177 of the Code of Georgia, relating to gifts from one party
to another where there are confidential relations arising from nature,
or created by law, or resulting from contracts where one party is so
situated as to exercise a controlling influence over the other, is only a
statement of a general rule, governing all courts of equity. Ib.
1. A judgment of the Supreme Court of the District of Columbia, quash-
ing a writ of certiorari, after a justice of the peace, in obedience to the
writ, has returned the record of his proceedings and judgment in a
landlord and tenant process, is reviewable by this court on writ of
error, if the right to the possession of the premises is worth more than
$5000. Harris v. Barker, 666.
2. A judgment of a justice of the peace, which is subject to appeal, cannot
be quashed by writ of certiorari, except for want of jurisdiction, ap-
pearing on the face of his record. Ib.
3. Under the Landlord and Tenant Act of the District of Columbia, re-
quiring a writter complaint on oath of the person entitled to the
possession of the premises to a justice of the peace," the oath may be
taken before a notary public outside of the District. Ib.
4. Under the Landlord and Tenant Act of the District of Columbia, a
complaint which alleges that the complainant is entitled to the pos-
session of the premises, and that they are detained from him and held
without right by the defendant, his tenant at sufferance, and whose
tenancy and estate therein have been determined by a thirty days'
notice in writing to quit, is sufficient to support the jurisdiction of the
justice of the peace.
lb.
See CONSTITUTIONAL LAW, 7, 8:
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