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agreed to appropriate sufficient moneys from its treasury to pay the accruing interest thereon, the city was thereby authorized to levy a tax to pay said interest, and such authority carried with it the duty to make the levy. Sibley v. The City of Mobile,
226. 2. But when at the time of the issue of the bonds the Constitution of the state limited
the taxing power of the city to a certain per centum upon its taxable property, the city could not exceed that limit; but having first levied a tax sufficient to pay its current expenses, it was bound by its contract to exhaust, if necessary, the residue of its tax
ing power in order to pay the interest on said bonds. Ib. 3. Where such a constitutional limit to the taxing power existed, it was not competent
for the legislature, by an act passed after the issue of said bonds, to direct that the entire taxing power of the city should be exhausted for the payment of the holders of ebonds of another issue who had no specific claim upon the fund raised by taxation, or any part thereof.
1b. 4. Where the taxing power of the city was limited by the Constitution, all the holders
of the bonds issued by the city were entitled to share pro rata in the general fund raised by taxation, which remained after the payment of the current expenses of the
city. 16. 5. A city with a limited power of taxation which, by neglect to levy and collect taxes,
has permitted the interest on certain of its bonds to fall in arrears, cannot defend against an application for the writ of mandamus to compel the levy of a tax to pay a judgment recovered for interest due on bonds of a later issue, by alleging that a levy to pay the interest in arrears on the older issue would exhaust its taxing power,
when at the same time it expresses no purpose to levy a tax for that object. 16. 6. Actions were brought upon certain bonds issued by plaintiffs in error, the town of Ot
tawa and Kendall County. Evidence was offered in the court below that the statutes in pursuance of which the bonds had been issued, had not been passed in the exact form and manner prescribed by the state Constitution. The testimony was excluded, the court holding that the facts showed that the holder of the bonds was a bonâ fide purchaser without notice of any objection to their validity; that the first instalment of interest had been paid at maturity ; that the law had been duly published among the printed statutes of the state; and that the defendant was, therefore, estopped from offering any evidence that the law was not passed according to the provisions of the Constitution. Held, that this view was erroneous; that there can be no estoppel in the way of ascertaining the existence of a law; and that as, under the decisions of the state court of last resort, the evidence was admissible to prove that the law as pub
lished was not a law, it should have been received. Town of Ottawa v. Perkins, 193. 7. Any failure to comply with the provisions of law touching the issue of a municipal bond will render it invalid. And this rule is to be applied to detached coupons
which refer on their face to the bonds. McClure v. Township of Oxford, 241.
See JUDGMENT, 2, 3, 4.
MUNICIPAL CORPORATION. 1. The owner of a wooden building, situated in a city which has, by ordinance, prohibited
the erection or placing a wooden structure over ten feet high within certain prescribed boundaries, which building was erected within said limits prior to the passage of the ordinance, may lawfully move such building from one lot to another within the pre
scribed boundaries. City of Cleveland v. Lenze, 68. 2. The owner of such building having, by the consent of the city, moved it along and
upon a street to a point adjoining his lot, located within the fire boundaries, may lawfully place it upon such lot, and the city could not lawfully interfere to prevent his
doing so. Ib. 3. Under circumstances that place the city in the wrong, an interference on her part so
that the owner is prevented from placing the building on his lot, and in consequence, by obstructing the street, the building becomes a nuisance and is torn down, the city
is liable to the owner for damages. Ib. 4. Where the building was lawfully in the street, and the owner was in the act of remov
ing it from the street upon his own premises, and by the wrongful interference of the city with the rights of the owner, the building becomes a nuisance, an order from the police court, requiring it to be removed or torn down, will not exempt the city from
liability for damages. Ib. 5. An agreement between the owner of such building and the city authority, made on
the consideration that the city will permit him to tear down his own building, or that Holland v. Drake, 479. 2. Where an assignment is so made against the will of the non-executing partner, or
the city may tear it down without incurring a responsibility in damages, is wanting in
mutuality, without consideration, and void. Ib. 6. The owner of such building having offered to make it conform in all respects to the
requirements of the fire ordinance of May 10, 1854, had the right to do so, and was
entitled to a reasonable time in which to perform. Ib. 7. The statutes of Indiana permit municipal corporations to make donations and sub
scriptions to the capital stock of railroad corporations, and to issue bonds accordingly. The city of Attica issued certain bonds in consideration of the location of the shops of a railroad company within the limits of the city. Held, that the bonds were illegally issued. Indiana North & South Railroad Co. v: City of Attica, 377. !
NATIONAL BANK. Whether due care and diligence have been exercised by a bank in the custody of bonds
deposited with it as collateral security is a question of fact exclusively within the province of the jury to decide. Third National Bank of Baltimore v. Boyd, 214.
NEGLIGENCE. 1. The terms negligence and ordinary care are correlative terms. Ordinary care depends
on the circumstances of the particular case, and is such care as a person of ordinary prudence under the circumstances would have exercised. Norfolk g. Petersburg R.
R. Co. v. Ormsby, 117. 2. A railroad company running its cars through a populous street of a city, on which
many children live, must omit nothing which can be done by the company and its
agents to prevent injury to children on the street. Ib. 3. A child two years and ten months old cannot be capable of contributory negligence,
so as to relieve a railroad company from liability for its own negligence. Ib. 4. Negligence of the parent or guardian of an infant child injured by a railroad car can
not constitute contributory negligence on the part of the child, so as to exonerate the
company. Ib. 5. Whether it is due and proper care to attempt to remove a person from a street
railroad car, while the same is in motion, is a question of fact for the jury, and not of
law for the court. Healey v. The City Passenger Railroad Co. 249. 6. If the driver of such car has authority to collect fare, and to put a person off for its
non-payment, his master will be liable, if injury results from excessive force and violence in so doing, or if, as driver, he is guilty of carelessness or negligence in keep
ing the car in motion, by reason of which the person is run over and injured. Ib. 7. Where the evidence of the plaintiff tends to show want of care on the part of the
driver of a street car in keeping the car in motion, while he is putting a person off for non-payment of fare, by reason of which the person is run over by the car and injured, it is error, in such case, to instruct the jury that the liability of the railroad company depends solely on the question whether the driver acted within the scope of
his employment in attempting to collect fare, and in putting the person off for refusal 8. Where the injury complained of results from want of care in the driver in running of
the car, and not from the force and violence used in ejecting a person from the car, the company would be liable, whether the driver had or had not authority to collect
fare. 16. See Common CARRIER, 3, 4; CoNsTRUCTION OF STATUTES; RAILROAD, 1, 4, 5;
to pay. Ib.
PARTNERSHIP. 1. One of the members of an insolvent firm cannot, either before or after dissolution of
the partnership, make a valid assignment of all its effects for the benefit of creditors, against the will of a copartner, or without his assent when he is present or accessible. creditor, the assignee, and the partners, the property was delivered by the sheriff to the assignee, to be by him sold in place of the sheriff, and the proceeds to stand in place of the property, and be applied to the attaching creditor's judgment when obtained, if the court should hold the attachment good; in an action by the attaching creditor against the assignee and the partners, to have the proceeds of ihe property so applied: Held, that the defendants were estopped from setting up as a defence that the lien of the attachment was lost by delivery of the property to the assignee under said agreement.
when he is present and not assenting, and he subsequently ratifies the assignment, the ratification will relate back to the time of executing the assignment, and give it effect from that date; but not so as to defeat the rights of third persons, acquired in good
faith in the mean time. Ib. 3. Where in such a case an attachment had been levied upon the property, between the
date of the assignment and its ratification, and by agreement between the attaching jury. 10. 3. It is error for the presiding justice to permit counsel, in addressing the jury, against
Ib. 4. In such action it was not necessary to make the partnership creditors parties defend
ant. Ib. 5. The outgoing members of a firm that is dissolved, are sureties on a partnership debt
for those who remain, but they are discharged if the latter, without their knowledge or consent, substitute a new debt that increases their liability. Smith v. Sheldon, 93.
PATENT. 1. The formal expression, “ as shown and described,” is not to be taken to limit a claim
to the exact construction shown and described. Hence where the claim of the patent was for “ a plug of tobacco having a hard label pressed into one of its faces as speci. fied,” the description setting forth that the label was to be applied underneath the wrapper, and it appeared that defendant applied his label outside of the wrapper, it was held that the claim was infringed and a preliminary injunction was granted.
Lorillard & Co. v. McDowell, 163. 2. Mere change of material does not constitute invention. But where the result of the
substitution of one material for another is a superior product, — one having new capabilities and functions, the substitution amounts to invention. Hotchkiss v. Green
wood, and analogous cases expounded. Smith v. Goodyear Dental Vulcanite Co. 74. 3. To show want of novelty in an invention the proofs must establish a prior use of that
which is in substance the same as the thing patented. Ib. 4. Mere amplification of an original specification will not invalidate a reissue. Ib. 5. A delay of nine years in pressing an application held not to be abandonment. Ib.
See JUDGMENT, 6.
PLEADING AND PRACTICE. 1. In a suit against a refiner and vendor of petroleum, for the death of plaintiff's hus
band, alleged to have been caused by the explosion of the oil, the allegation and evidence of plaintiff wore that the oil exploded in a lamp in his hand whilst he was walking quietly; the defendant's allegation and evidence were that the death was caused by his tripping and falling with the lamp in his hand. In charging, the court saiil,
Was the death occasioned by the explosion at the time and in the manner claimed by the plaintiff? In regard to this there can be no doubt whatever.” Held to be error; whether the death was caused by the explosion as alleged by the plaintiff was
for the jury. Elkins, Bly of Co. v. McKean, 30. 2. The declaration averred that the defendants wilfully sold the oil for lighting purposes,
“ knowing that it was highly inflammable, explosive, and unsafe,” &c. There was evidence that the oil had been sold by defendants, but none that the sale was with wilful knowledge of its dangerous character. Ileid to be error to submit the case to the defence were stricken from the cases; and this a short time before the last case was acted on. The counsel was not in default for failing to enter an appearance for F. ; and the decree of confiscation is void and of no effect. Ib.
seasonable interposition, to proceed with his argument upon asserted facts not in evidence and having no legitimate pertinency to the issue. Rolfe v. Inhabitants of Rumford, 461. 4. In a proceeding to confiscate property of a person charged to be in rebellion, the
directions of the attorney general are, that the method of seizure of the property shall be conformed as nearly as may be to the state law, if there be such. When therefore the proceeding is to confiscate debts due from a municipal corporation, the notice to the debtor must be upon the mayor or other officer named in the Virginia statute; and notice given to the auditor of the corporation is of no effect, and the judgment based
npon such notice is null and void. Fairfar v. City of Alexandria, 512. 5. On such a proceeding against F., the counsel of F. does not enter an appearance for
him because in three cases against the same party, before the same judge, he was informed by the judge from the bench, that it was the rule of his court not to allow an appearance and defence by rebels and traitors; and in these cases the appearance and
PRINCIPAL AND SURETY. 1. The right of contribution among co-sureties is not founded in contract, and does not
depend on the form of the instrument nor the position of the names of the obligors therein, but is the result of the application of general principles of equity, and depends on the actual relation they sustain to the instrument and to each other. In an action for contribution, and in the absence of any contract in writing fixing such relation and liability between accommodation parties to a note, parol evidence is admissi
ble to show the real nature of the transaction. Oldham v. Broom, 263. 2. As between accommodation makers of a promissory note, the presumption is that
they are co-sureties, and as such liable to each other to contribute; but this presumption may be rebutted by parol proof showing that the one last signing did so as the
surety for the prior makers, and not as a co-surety with the prior surety. Ib. 3. Where a joint note is signed by the principal and by one as his surety, and is in
trusted by the surety to the principal without limit on his authority, such surety thereby impliedly authorizes the principal to obtain such additional sureties or guarantors as may be required to make the paper available for the purposes intended by the original makers, and the sureties or guarantors so obtained may stipulate the
terms of their liability, as between themselves and prior parties. Ib. 4. One who thus signs such note, at the request of the principal debtor, to enable him to
use it as intended, without the knowledge of the prior surety, and without any agreement or understanding with him to the contrary, may stipulate with the principal debtor and make it a condition of his signing that he signs as surety of the prior
parties, and not as co-surety with the prior surety, Ib. 5. Such stipulation need not be in writing, and parol evidence is admissible to show an
express contract to that effect, or facts and circumstances that will raise an implied
contract. 16. 6. Declarations of such party, made to the principal debtor at the time he executes and
delivers the instrument, as to the terms and conditions on which he becomes liable, are, in connection with other testimony, admissible as part of the res gestæ, tending to show an agreement, espress or implied, as to the extent of such liability. Ib.
1. The franchises and property of one railroad may be taken for the construction of an
other in all cases where the property of an individual might be, upon making compensation therefor; but not without. Grand Rapids, Newaygo & Lake Shore R. R.
Co. v. Grand Rapiols & Indiana R. R. Co. 158. 2. Property taken for a particular public use does not thereby become public for all pur
poses; it may revert when the specific public easement is vacated. İb. 3. The term “ public use," as employed in proceedings for the taking of property in invitum, criticised as misleading, and limited accordingly. Ib.
RAILROAD. 1. A railroad company is not liable for an injury to a person resulting from its failure to
exercise ordinary skill and care in the erection or maintenance of its station-house, where, at the time of receiving the injury, such person was at such station-house by mere permission and sufferance, and ot for the purpose of transacting any business with the company or its agents, or on any business connected with the operation of
the road. Pittsburg, Ft. Wayne f Chicago Railway Co. v. Bingham, 468. 2. The statute requiring railroad corporations to inclose the land taken for their road
with fences is a police regulation, designed to secure the safety of the public travel and transportation, and is obligatory, as such, upon all railroad corporations, whether
chartered before or after its passage. Wilder v. Maine Central Railroad Co. 45. 3. A parol agreement between a railroad company and an adjoining owner, for the re
moval and discontinuance of a fence on the line of the railroad, does not run with the
land, and cannot therefore bind his grantee. Ib. 4. Where a horse escaped from his owner's land on to an adjoining railroad and was
killed by the railroad company's locomotive: Held, that the mere fact of his turning his horse upon his land where there was no fence between it and the railroad, was not proof of contributive negligence. Ib.
5. By St. 1874, c. 55, the Old Colony Railroad Company was authorized to purchase the
rights, franchise, and property of the Middleborough and Taunton Railroad Corporation, and the latter was authorized to convey to the former its franchises and property, rights, easements, privileges, and powers, and thereupon the former corporation was to * be subject to all the duties, liabilities, obligations, and restrictions to which said last named corporation may be subject.” Held, that the Old Colony Railroail Company, upon the completion of the purchase and conveyance, became directly liable in an action of tort for damage occasioned by the prior neglect of the Middleborough and Taunton Railroad Corporation. New Bedford Railroad Co. v. Old Colony Rail
road Co. 129. 6. Damages assessed by the proper board for land taken by a railroad corporation are in
full, and it is not open to the land-owner to prove that certain other causes of dam
are were not consiilered. Perley v. B., C. & M. R. R. Co. 464. 7. The land-owner is not to be prevented from the reasonable and prudent use of his
land by reason of the improper construction of the railroad; and if, using his land in a reasonable and prudent manner, he suffers damage from such improper construction, he may recover his damages, notwithstanding such use of his land was subsequent to the construction of the railroad. 1b.
RECEIVER. A court of equity has power in a proper case to allow the issuing by a receiver of nego
tiable certificates of indebtedness creating a first lien upon the property in his hands. Meyer v. Johnston, 140.
REMOVAL OF CAUSES. 1. The Act of March 3, 1875, concerning the removal of causes, warrants a removal in
all cases where there are real parties in interest who are citizens of different states upon different sides. It is not necessary that all the parties on one side and all the
parties on the other be citizens of different states. Girardey v. Moore, 387. 2. The third subdivision of section 639 of the Revised Statutes of the United States is
not repealed by the Act of March 3, 1875. Cooke v. Ford, 280. 3. The words - final hearing or trial,” in the Act of Congress of 1867, prescribing the
conditions touching the removal of causes, require the application for removal to be made before " trial” in actions at law and before “ final hearing” in suits in equity. Such application will not be allowed after the applicant has elected to stand a trial in the state court, if such trial is not final. Continental Ins. Co. v. Kasey, 310.
RESPONDEAT SUPERIOR. 1. One who employs a firm of collecting agents, in response to an alvertising card, in
which they announce that they will treat his debtors with delicacy, so as not to offend them, or with suel severity as to show that no trifling is intended,”' giving no special instructions, authorizes them to use such means as they see fit to adopt, in the prosecution of his business for his benefit, and is responsible therefor. Caswell v.
Cross, 289. 2. Plaintiff was in the employ of a contractor engaged by defendants to make excava
tions in a tunnel. Trains were constantly passing the spot, which was on a curve and dark. No one was stationed to give an alarm, although precautions had been previously taken to protect other workmen similarly employed. Plaintiff was struck by a train and injured. Held, that defendants were not liable. Woodley v. Metropolilan Railway Co. 452.
SLANDER The words, “ A. B. stole windows from C. D.'s house,” are not of themselves, in their
ordinary and popular sense, actionable, as imputing either a charge of larceny or an act of malicious mischief upon real estate. Wing v. Wing, 240.
STATUTE OF FRAUDS.
See CONTRACT, 3, 4.
SUNDAY. A loan of money made on the Lord's day is void. Whether the promise to repay be ip
writing, verbal, or implied, it cannot be enforced. M v. White, 238.