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See BILLS AND Notes, 3.

COMMON CARRIER. 1. A common carrier is one that undertakes for hire or reward to carry, or cause to be

carried, goods for all persons indifferently who may choose to employ him, from one

place to another. C'nited States Express Co. v. Backman, 328. 2. An express company, that receives and agrees to transport goods from one designated

place to another designated place, for a compensation, in the ordinary means of conveyance, is a common carrier, although not the owner, and having no interest in the

conveyance by which the goods are transported. Ib. 3. A common carrier is liable for the value of the goods lost through its negligence, not

withstanding the bill of lading provides that the carrier shall not be liable beyond an amount named therein, when it is understood by the parties that the sum so agreed on is less than the value of the goods. Such an agreement can at most cover a loss arising from some cause other than the negligence or default of the carrier or his servants, and the rule of damages is the same, although less is charged and paid for the

transportation than when the exempting clause is omitted. Ib. 4. In an action on the ground of negligence against a common carrier upon a bill of

lading containing an exemption from liability from loss by fire, the burden of proof is on the carrier to show that the loss occurred within the terms of the exemption, and

that the loss occurred without fault on his part. Ib. 5. A common carrier is liable for loss or injury caused by delay resulting from the refusal

of its employees to do duty; but is not liable for loss or injury caused by delay resulting from the lawless violence of former employees on a strike.'Pittsburg, Ft.

Wayne & Chicago R. W. Co. v. Hazen, 83. 6. While a common carrier may restrict by contract his liability in matters not inconsist

ent with public policy, he cannot legally contract against liability for the negligence of himself, his agents, or servants. President, fc. of the Bank of Kentucky v. Adams

Express Co. 132. 7. A railroad company which provides a place for, and carries on its trains, messengers

of an express company, becomes the agent of the express company, notwithstanding

the servants of the railroad company are not under the control of the express com8. A common carrier has no power to constitute another person or corporation the agent

of his consignor, or consignee. He can only employ a subordinate agency. Ib. 9. A stipulation that an express company will not be liable for the loss of a package by

fire does not relieve the company from liability for loss by fire caused by the negligence of the railroad company transporting its messenger.

Ib. 10. While the consignor of the express company may sue the railroad company for the

loss of packages by its negligence, such right comes through the contract between the

express and railroad companies. 1b. 11. As to whether a railroad company is liable, as a common carrier, to an express com.

pany when the latter by its messenger retains the custody of the package, quære. lb. 12. A common carrier may show, as an excuse for non-delivery of goods pursuant to his

bill of lading, that he has delivered the goods upon demand to the true owner. Hentz v. The Idaho, 152.

CONSTITUTIONAL LAW. 1. Until Congress makes some regulation touching the liabilities of parties for marine

torts resulting in death of the persons injured, the statute of Indiana giving a right of action to the personal representatives of the deceased, where his death is caused by the wrongful act or omission of another, applies, the tort being committed within the territorial limits of the state; and as thus applied it constitutes no encroachment upon

the commercial power of Congress. Sherlock v. Alling, 38. 2. The action of Congress as to a regulation of commerce or the liability for its infringe

ment is exclusive of state authority; but until some action is taken by Congress, the legislation of a state not directed against commerce or any of its regulations, but relating generally to the rights, duties, and liabilities of citizens, is of obligatory force within its territorial jurisdiction, althought it may indirectly and remotely affect the operations of foreign or inter-state commerce, or persons engaged in such commerce. Ib.

pany. 16.

3. It is within the power of a state to fix by law the maximum of charges for the storage

of grain in warehouses in the state, although the grain is stored in bulk in such manner that the identity of different lots is not preserved. A statute fixing such maximum is not repugnant to any of the provisions of the Constitution of the United States. 1. It does not “ regulate commerce," within the meaning section 8, article 1. 2. It does not give a " preference . to the ports of one state," within the ineaning of section 9, article 1. 3. It is not contrary to that part of the XIVth Amendinent which provides that no state shall “ deprive any person of life, liberty,

or property, without due process of law. Munn v. The People, 165. 4. Where a corporation is assessed on its gross receipts, under the provisions of “ an act

for the assessment and taxation of express and telegraph companies" (S. & S. 769771), and pays such assessment to avoid the penalties and disabilities incurred by : refusal to pay, but under protest and after notifying the treasurer that an action would be brought to recover back; such payment is not voluntary, and an action may be maintained to recover back the amount so paid, if the tax is illegal. Western Union

Telegraph Co. v. Mayer, 499. 5. The privilege that a foreign corporation enjoys by legislative consent of exercising

its corporate powers, and of carrying on its business within the state, is not property within the meaning of article 12, section 2, of the state Constitution. The provisions of "an act for the assessment and taxation of express and telegraph coinpanies (S. & S. 769-771), as amended, which requires a foreign telegraph company to pay a tax on its gross receipts for the year next preceding the return for assessment, at a rate equal to that on property, and prohibits any person from acting as agent, or transacting any business for such company that is in default of payment, are, in effect, a charge for the privilege of exercising its franchises and powers within the state, graduated according to the amount of receipts, not in conflict with any of the

limitations on the power of taxation vested in the general assembly. lb. 6. A state has power to control the rates of fare and freight charged by a common car

rier within its jurisdiction. The doctrine of Munn v. The People, applied. Chicago,

Burlington, f. Quincy Railroad Co. v. Cutts, 174. 7. Where a sentence not authorized by law has been imposed upon a prisoner, the court

of appeals can only reverse the judyment; it has no power to impose the proper sentence, or to remand the case to the court of original jurisdiction for that purpose. Where the accused was illegally sentenced and judgment reversed on this ground by the appellate court; held, that the accused could not be again tried for the same offence. McDonald v. The State, 484.


Plaintiff, a guest at defendant's inn, retired without locking the door of his room. 3. Where the defendant verbally contracted with the plaintiffs for the purchase of a

During the night his watch, money, and other property, which had been left upon a chest of drawers near the door, were stolen. By section 1 of 26 & 27 Vict. it is provided that no innkeeper shall be liable to make good any loss of property brought to his inn, except when such property shall have been “stolen, lost, or injured through the wilful act, neglect, or default of such innkeeper, or any servant in his employ." Section 3 of said act requires the innkeeper to exhibit a copy of section 1 in a conspicuous part of the entrance to his inn. Defendant caused a notice purporting to be a copy of section 1 to be placed in the entrance to his inn, but the word “ actwas omitted. Held: (1) that the innkeeper was not protected by the statute; (2) that the question of negligence was properly left to the jury. Spice v. Bacon, 418.


1. A contract for the sale and purchase of wheat to be delivered in good faith at a

future time is not void as a “ wagering contract;” but when under such an agreement it is understood by the parties that no wheat is to be delivered, but only a payment at the time appointed of the difference between the contract and the market price, it thus

becomes a wagering contract and the law will not enforce it. Rumsey v. Berry, 64. 2. The plaintiffs in good faith, at the request and for the benefit of the defendant, made

an agreement for the sale of wheat to be delivered within a certain time, at the option of the defendant, he to furnish sufficient “ margin" to secure them against loss. The defendant failed to comply with his part of the contract, and a loss ensued. Helu, that under such a contract the law will give to the plaintiffs a remedy for their loss. Ib.

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quantity of ice to be afterwards delivered, and after the breach of the contract by the defendant, the parties put the contract into writing, in the terms as before agreed upon verbally, antedating it as an original contract of the date of the verbal contract first made, in an action upon the contract commenced after, but declaring upon a breach which occurred before, the writing was made, the writing is sufficient evidence

of the prior verbal contract to satisfy the statute of frauds. Bird v. Munroe, 435. 4. In such case, in view of the statute of frauds, the writing not to be regarded as

constituting the contract itself, but as merely the necessary evidence by which the

contract may be proved. Ib. 5. Parol evidence is admissible, to show that the date of the writing was not an errone

ous, but an intentional one, and that the parties intended thereby to create written

evidence of the unwritten contract before made. Ib. 6. An agreement to submit to arbitration, the effect of which is to oust the courts of

jurisdiction, is invalid. Pearl v. Harris, 533. 7. A bill in equity for an account of a copartnership, one of the articles of which pro

for the submission of disputed matters to arbitration, need not allege a refusal to refer by the defendants; and the defendants cannot defeat the jurisdiction of the court by alleging that they are and have been willing to refer under the articles of

copartnership. Ib. 8. Where, during the late war, a creditor resided within the territory of one of the

belligerent powers, and his debtor within that of the other, such debtor is, under the rules of public law, entitled to abatement of interest during the continuance of the

Roberts v. Cocke, 534. 9. Where the debtor and creditor reside within the same territory, the mere existence

of war does not furnish such a legal ground for abatement of interest. Ib. 10. In contracts for the payment of a sum certain, interest on the principal sum is a

legal incident of the debt: the right to it is founded upon the presumed intention of

the parties. 10. 11. Wherever there is a contract, express or implied, for the payment of legal interest,

the obligation of the contract extends as well to the payment of interest as it does to the payment of the principal sum; and neither court nor jury ever had the power to

dispense with the performance of such contracts in whole or in part. 1b. 12. The laws which subsist at the time and place of the making of a contract, and

where it is to be performed, enter into and form a part of the contract, whether such laws affect its validity, construction, discharge, or enforcement.



CORPORATION. 1. The Northern Central case. State v. No. C. R. R. Co. 230. 2. Under the clause of the Constitution of the United States, extending the judicial

power of the United States to controversies between citizens of different states, a corporation, in respect to the jurisdiction of the federal courts, is regarded as a citizen of

the state where it was created. Baltimore & Ohio Railroad Co. v. Cary, 391. 3. A foreign railroad corporation, by merely leasing, possessing, and operating in this

state the property of a domestic railroad corporation, does not thereby become an

Ohio corporation, nor such citizen of the state. 16. 4. The proviso of the 24th section of the act for the creation and regulation of incor

porated companies in Ohio, as amended March 19, 1869 (66 Ohio L. 32), so far as it provides that the leasing, purchasing, or operating a railroad in this state by a railroad company of another state shall be regarded as a waiver of the right of such foreign company to remove cases brought against it in the state courts to those of the United States, is repugnant to the Constitution and laws of the United States, and is,

therefore, ineffective as a statutory waiver of the right of such removal. 16. 5. When a corporation of another state, not being a citizen of Ohio, is sued by a citizen

of the state, in the state court, it is entitled to have the case, under the 12th section of the Judiciary Act of Congress of 1789, removed from the state court to a United States court. 16.

CRIMINAL LAW. 1. The prosecution cannot attack the character of the prisoner unless he first puts that

in issue by offering evidence of his good character. State v. Lapage, 411.

2. The prosecution cannot show the defendant's bad character by showing particular

acts. 1b. 3. The prosecution cannot show in the prisoner a tendency or disposition to commit the

crime with which he is charged. Ib. 4. The prosecution cannot give in evidence other criminal acts of the prisoner, unless

they are so connected by circumstances with the particular crime in issue as that the proof of one fact with its circumstances has some bearing upon the issue on trial other

than such as is expressed in the foregoing three propositions. Ib. 5. The ingredients necessary to constitute murder in the first degree having been proved,

the circumstance that the killing was preceded by a verbal dispute and by violent threats uttered by the deceased will not reduce the grade of the offence. Green v. The

Commonwealth, 189. 6. In a criminal case, the fact that an isolated part of a charge may be open to doubt,

when read without regard to the other parts thereof, is not sufficient ground for re

versal. 1b. 7. An indictment found by a grand jury drawn by virtue of venires not having the seal

of the court upon them, is illegal and void ; and the defect is one which cannot be

cured by amendment, or by special act of the legislature. State v. Flemming, 272. 8. In a criminal case a plea in abatement is sufficient, if it is free from duplicity and

states a valid ground of defence to an indictment in langnage sufficiently clear not to be misunderstood; the strictest technical accuracy, such as is sometimes required in

purely dilatory pleas in civil suits, will not be exacted. 16. 9. An indictment may contain two or more counts alleying distinct offences, if they are

of the same general description, and the mode of trial and the nature of the punish

ment are the same. Commonwealth v. Brown, 292. 10. The provisions of the Gen. Sts. c. 132 (Mass.), as to the selecting and drawing of

jurors, are within the constitutional authority of the legislature. 1b. 11. The St. of 1875, c. 5 (Mass.), providing that the grand jurors, empanelled at a

certain time of the superior court, for the county of Suffolk, and who were citizens of the class qualified by the general laws to serve as grand jurors, “ shall for all purposes be deemed and held to be the grand jury of said county, duly and legally drawn, summoned, returned, and empannelled," until a certain time, “notwithstanding any irregularity in any writ of venire facias, or in the drawing, summoning, returning, and empanelling of said grand jurors,” is constitutional as to indictments found by said

grand jurors after its passage. Ib. 12. If a bad plea in bar in a criminal proceeding, which presents merely a question of

law, is submitted to a jury, and, after a verdict thereon for the commonwealth, overruled by the judge, the defendant has no ground of exception to the order submitting

the question to the jury, or to the rulings at the trial of the plea. Ib. 13. Upon the trial of an indictment for an illegal operation upon a woman, with intent

to procure a miscarriage, an officer was permitted to testify that he took the defendant, after his arrest, into the presence of the woman, and asked her if the defendant performed an operation upon her; that the woman said he did; that the defendant asked the woman if she had been operated on previously by any other person; that the woman said, “ No, she came there to be operated on to get rid of a child.” Held,

that the evidence was admissible. Ib. 14. Upon the trial of an indictment for an illegal operation upon a woman, with intent

to procure a miscarriage, certain surgical instruments and a speculum chair, found in the defendant's house, were exhibited to the jury. There was evidence that the chair had been used in performing the operation, and medical experts were allowed to testify that the surgical instruments were adapted to producing abortions, although none of them could be said to be so exactly designed for such use as not to be appropriate also for use in lawful acts of surgery. Held, the defendant had no ground of excep

tion to the admission of this evidence. 16. 15. Medical books cannot be read in evidence to the jury. Ib. 16. No exception lies to the refusal of the judge presiding at the trial of a criminal case,

to give instructions as to matters of fact. 16. 17. No exception lies to a refusal to instruct the jury in the precise words requested, if

the instruction is given in substance. Ib. 18. Upon the trial of an indictment for an illegal operation, with intent to procure a

miscarriage of a woman who had applied to the defendant for that purpose, the woman testified as a witness, and the defendant requested an instruction that, though she was not to be considered as an accomplice, the jury were to take her statements “ with great circumspection and caution and discredit.; This was refused; but the judge the office of A. with money for him; that he found B. in the office, who, on being asked, said he was not A., and that he was going to stay until A. came in; and that the boy handed the money to B., on his signing a receipt therefor, which he did in the name of A. by C., signing a false name instead of his own. The defendant asked the judge to rule that " to constitute larceny, there must be an appreciative act of personation, and that if B. said he was not A., there was no larceny.” The judge gave this instruction, with the addition, “ unless B. held out some inducement to the boy to lead him to believe that he had the right to sign the receipt and receive the money

instructed the jury that the fact that the witness was iruplicated in the alleged acts of the defendant might be considered as affecting her credibility and the weight of her testimony: Held, that the defendant had no ground of exception. 16. 19. An indictment under the Gen. Sts. c. 165, § 9, alleged that A. B., at a time and

place named, “ with force and arms, did unlawfully use a certain instrument, a more particular description of which is to said jurors unknown, by then and there forcing and thrusting said instrument into the body and womb of one C. D., being then and there pregnant with child, with the intent of him, said A. B., thereby then and there to procure the miscarriage of the said C. D.,' and concluded in the usual form. Held,

that the indictment was sufficient. Ib. 20. Where an application is made for a discharge, under section 162 of the Criminal

Code (66 Ohio L. 311), at any term of the court, on the ground that the defendant, who had given bail for his appearance, was not brought to trial before the end of the third term after the indictment was found, such application should be refused, if at such term the state is ready for trial, although the cause cannot be tried for want of

time at such term. Eruin v. The State, 357. 21. Where, on the trial of a criminal cause, a juror is challenged by the defendant for

cause, and the challenge is improperly refused; but such juror is afterward excused on a peremptory challenge, the judgment will not be reversed for such error, if an acceptable jury be empanelled before the defendant has exhausted his right to peremptory challenges. Mimms v. The State, 16 Ohio St. 221. 22. Intention or purpose to kill may be present in the crime of manslaughter, where the

killing is without malice upon a sudden quarrel. 1b. 23. Where death is caused by the use of a deadly weapon, and the circumstances of the

killing are detailed to the jury, some of which tend to disprove a malicious or intentional killing, it is misleading to charge the jury “ that in this case the law raises a presumption of malice in the defendant, and an intent on his part to kill the de

ceased." 1b. A. Where a person in the lawful pursuit of his business, and without blame, is violently

assaulted by one who manifestly and maliciously intends and endeavors to kill him, the person so assaulted, without retreating, although it be in his power to do so without increasing his danger, may kill his assailant if necessary to save his own life or

prevent enormous bodily harm. 1b. 25. In a criminal case, a witness, who testifies to the doing of the act charged against

the defendant, may be asked who the person was who did it, and no exception lies to the admission of his answer, “ That man,” pointing to the defendant. Commonwealth v. Whitman, 475. 26. On an indictment for larceny, the evidence tended to prove that a boy was sent to


for A." Held, that the defendant had no ground of exception. Ib. 27. On the trial of an indictment for larceny, there was evidence identifying the pris

oner as the person who had committed the act at the office of A., by a boy who was sent to that office with a receipt for A. to sign. On the receipt was written “twenty minutes past two,” denoting the time when the boy started on his errand. A witness for the government who had an office in the same building as A., testified that at about thirteen minutes to two o'clock he passed the door of A.'s office and saw the prisoner there alone. Held, that the defendant had no ground of exception to the admission of this evidence; and that the government, by putting the receipt into the

was not bound to concede that the interview between the prisoner and the boy was after twenty-two minutes past two o'clock. Ib. 28. At the trial of an indictment for larceny, it appeared that a boy was sent to an

office with a package, and that a man in the office took the package and signed a receipt for it. The government offered in evidence a receipt for a watch, admitted to be signed by the defendant. The judge instructed the jury that “ the only legitimate use of the watch receipt was for the comparison of hands, and if the jury believed that the same person wrote the watch receipt and the name attached to the receipt which the took, it was evidence tending to show that the man who was in


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