Vol. IV.]

DIGEST OF CASES.

[No. 8.

which it was expressed in the hurry of the trial, the jury may have been misled as to the law, the judgment will be reversed. In answering points upon which the court has been requested to charge, the judge is not obliged to simply affirm or negative them, but it is proper to give such explanations or qualifications as will enable the jury to understand them. Pistorious v. Commonwealth, S. C. Pa., W. N. Č., June 21, 1877.

2. COMPETENCY OF JUROR. FIXED OPINION FROM READING. - A juror testified on his voir dire that he had a fixed opinion from what he had read, but that it was not such an opinion as would influence him in any degree as a juror to give undue weight to evidence against the prisoner, and that he felt certain he could divest his mind of all prejudice and be controlled only by the evidence: Held, that he was competent, inasmuch as he had no fixed belief of the guilt of the prisoner, and had no opinion founded upon the evidence to be given. Curley v. Commonwealth, S. C. Pa., W. N. C., June 28, 1877.

3. A JURY WHEEL WAS DEPOSITED BY THE JURY COMMISSIONERS FOR SAFE KEEPING IN THE VAULT OF THE COUNTY TREASURER in the court-house, upon condition that no one should enter the vault for the wheel but a jury commissioner. The key of the vault was in possession of the sheriff of the county: Held, that inasmuch as the law had not provided an office for the jury commissioners, nor a place of safety for the wheel, the custody of the wheel was sufficient. Ib.

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4. DECLARATIONS OF ACCUSED. RES GESTE. Declarations of the accused, made an hour before the killing, to the effect that the deceased had been following the accused for a long time to kill him; that he was in fear of his life when he saw deceased; and that he was going to leave the county to avoid a difficulty with the deceased, held inadmissible: not being a part of the res gesto, must have been made at the time the act was done which they are supposed to characterize, and calculated to unfold the quality of the facts they are intended to explain, and so to harmonize with them as obviously to constitute one transaction. State v. Evans, S. C. Mo., Cent. L. J., July 6, 1877.

5. MURDER. PRESUMPTIONS.- If the accused killed the deceased by shooting him with a pistol, the law presumes it is murder, in the absence of proof to the contrary. To constitute murder in the first degree, the deliberate purpose to take life or do some great bodily harm should exist and be shown by the evidence alone; while murder in the second degree may be made to appear from the killing alone, the accused failing to explain by evidence that it was done in a less criminal manner. 1b.

DAMAGES.

See INTOXICATING LIQUORS.

DEED.

A DEED BETWEEN HUSBAND AND WIFE is absolutely void at law, and, therefore, it will not be enforced in equity. Where a deed is made by a wife directly to her husband, but there is nothing upon its face to show the relation between them, such a deed, though void, is a cloud upon title, as evidence aliunde is necessary to establish its invalidity. Brooks v. Kearns, S. C. Ill., Chicago L. N., July 7, 1877.

Vol. IV.]

DIGEST OF CASES.

EASEMENT.

[No. 8.

LIGHT AND AIR. THE RULE IN INDIANA. An easement in light or air, to be supplied from the premises of another, cannot be acquired in the State of Indiana by mere use or prescription, but may be granted by deed or created by contract. There is no statutory law of the state recognizing the English doctrine on this subject, nor was it adopted by the common law into the state. Stein v. Hauck, S. C. Ind., Cent. L. J., June 22, 1877.

EVIDENCE.

See CRIMINAL LAW, 4.

HUSBAND AND WIFE.

See BUILDING ASSOCIATION; DEED.

INSANITY.

Where a per

EXECUTED CONTRACT MADE WITH INSANE PERSON. son contracts in good faith with one who is apparently of sound mind, and the contract is completed and executed, and the parties cannot be placed in statu quo, the contract cannot be set aside either by the lunatic, or those who represent him. Scanlan v. Cobb, S. C. Ill., Chicago L. N., June 30, 1877.

INSURANCE.

1. AGREEMENT OF AGENT TO GIVE NOTICE AS TO PREMIUM. RATIFICATION. ESTOPPEL. The general agent of a company agreed with the assured to notify her of the falling due of the premiums. Notices were regularly sent by the company for all payments of premium except that immediately preceding the death of the assured, for which no notice was received by her, and which consequently was not paid. The policy contained a clause of forfeiture for non-payment of premium when due : Held, that it was properly left to the jury to determine whether the company by their conduct misled the assured, and caused her to pass the time, relying upon the notice to be given, and were therefore estopped from setting up the clause of forfeiture. Globe Mutual Life Ins. Co. v. Johns, S. C. Pa., W. N. C., June 21, 1877.

ETC.

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2. CONSTRUCTION OF POLICY. MORTGAGE. OTHER INSURANCE, The policy provided that other insurance without consent, or a sale or transfer or mortgage of the property without notice, should avoid it; also that in case of other insurance, the insured might recover only a pro rata share of the loss; also that no sale or transfer of the property should vitiate the right of the mortgagee to recover. The loss was payable to the mortgagee. The insured subsequently placed a second mortgage on the property without consent, which was foreclosed by the mortgagee, who procured additional insurance without consent. Held, in a suit by the first mortgagee to recover, that the clauses relating to other insurance were not intended to defeat the rights of the parties by the acts of strangers for which they are not responsible; that the second mortgage without consent defeated the right of the insured, but not of the first mortgagee, to recover; and that the pro rata clause did not apply,

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DIGEST OF CASES.

[No. 8.

and the mortgagee was entitled to recover the full amount irrespective of other insurance. City Five Cent Sav. Bank v. Penn. Fire Ins. Co., Ins. L. J., June, 1877.

INTOXICATING LIQUORS.

DAMAGES UNDER LIQUOR LAW. In an action for damages against a saloon keeper, the word damages should be construed with reference to its known legal signification; that is, such damages as in legal contemplation, are to be regarded as the result of the wrongful act; that it does not follow because a person, while in a state of intoxication, receives an injury, that it can be said in a legal sense that the intoxication caused the injury. Shugart v. Egan, S. C. Ill., Mo. Jur., July, 1877.

LIMITATIONS.

See BANKRUPTCY 11; CERTIFICATE OF DEPOSIT.

MARRIED WOMAN.

See BUILDING ASSOCIATION; DEED.

MORTGAGE.

MORTGAGE OF AFTER-ACQUIRED PROPERTY. - A mortgage made to secure debts maturing at a future day, which conveys a stock of goods in a particular store, and any other goods which may from time to time, during the existence of the mortgage, be purchased by the grantors and put into said store to replace any part of said stock which may have been disposed of, or to increase and enlarge the stock now on hand, is void per se. Phelps v. Murray, Ch. Ct., Nashville, Tenn., Cent. L. J., June 22, 1877.

See BANKRUPTCY, 1; BUILDING ASSOCIATION; INSURANCE, 2.

MUNICIPAL BONDS.

1. ELECTION. - PRESUMPTIONS AS TO VOTES CAST AT. The presumption is, that the vote cast at an election held according to law is the vote of the whole number of legal voters, and this presumption cannot be rebutted by proof of the number of votes cast at an election held in the preceding year. Melvin v. Lisenby, S. C. Ill., Cent. L. J., July 6, 1877.

2. REGISTRATION UNDER ILLINOIS STATUTE OF APRIL 16, 1869.. Under a law authorizing a county to subscribe to the stock of a railroad company, upon condition that a majority of the votes cast at an election. on the question should be in favor of it, an election was held, resulting in a majority in favor of the subscription, and the subscription was made and bonds issued: Held, that the bonds were rightfully registered in the auditor's office under the Funding Act of April 16, 1869, which requires that the subscription, upon which bonds sought to be registered were issued, should have been voted for by a majority of the legal voters living in the county; it being the presumption that the vote, cast at the election on the question of subscription, was that of all the voters of the county. Ib.

3. NOT VOID BY REASON OF DEFECTIVE EXECUTION.

- Where bonds

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DIGEST OF CASES.

[No. 8.

of a county are legally authorized to be issued by a vote of the people, and, by the law authorizing the vote, it is provided that the bonds shall be executed by certain officers, and countersigned by the treasurer of the county; it was held, that the omission of the treasurer to countersign the bonds is a mere defect in the execution of them, which a court of equity would, in the absence of a remedy at law, ordinarily supply, and that an injunction restraining the collection of taxes for the payment of such bonds should not be allowed. lb.

NEGLIGENCE.

CONTRIBUTORY NEGLIGENCE. - RAILROAD CROSSING. DEAF PERSON, ETC. — F., a partially deaf man, drove a wagon up a steep slope, to a railroad crossing at grade on a road with which he was familiar. At about five feet from the railroad the company had recently erected a watch-house which obstructed the view to the north for about eight feet. Back of the watch-house was an open space for about thirteen feet through which there was an unobstructed view of the railroad. Beyond this the view was again closed by some buildings. F. drove past the buildings and the open space and stopped opposite the watch-house. He then looked in both directions, though it was impossible for him to see towards the north. Without leaving his wagon, he then drove on the track and was killed by a train. Held, that under the circumstances there was a clear case of contributory negligence, and the judge should have directed a verdict for the defendant. Cent. R. R. of N. J. v. Feller, S. C. Pa., W. N. C., July 5, 1877.

PARTNERSHIP.

AGREEMENT TO INDEMNIFY RETIRING PARTNER. It is the duty of a partner who has agreed to indemnify his retiring copartner from existing contracts and obligations of the firm, to ascertain the extent and nature of a liability of the existence of which he has knowledge, and, if he fail to do so, his ignorance thereof is no defence to an action for not keeping the retiring partner indemnified. Farrington v. Woodward, S. Ĉ. Pa., W. N. C., June 28, 1877.

RAILROAD.

See NEGLIGENCE; RECEIVER.

RECEIVER.

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APPOINTMENT OF RECEIVER OF RAILROAD. A court of equity will not appoint a receiver of a railroad merely upon a showing that there has been a default in the payment of interest, secured by a mortgage of the property and income of the company, that upon such default the trustees under the mortgage were entitled to immediate possession, that they have demanded possession, and that the same has been refused. It is necessary, in addition to this, to show that ultimate loss will happen to the beneficiaries under the mortgage by permitting the property to remain in the hands of its owners until final decree and sale, if such decree and sale be made. The facts in this case examined, and held not to exhibit such danger to the bondholders as will warrant the appointment of a receiver.

Vol. IV.]

MARSH U. WARREN.

[No. 8.

The case of Williamson v. New Albany R. R. Co. 1 Bissell, 198, followed. Union Trust Co. v. St. Louis, Iron Mountain & So. R. R. Co., C. C. U. S. E. D. Mo., Cent. L. J., June 22, 1877.

RES GESTÆ.

See CRIMINAL Law, 4.

SUNDAY.

See CONTRACT, 2.

VENDOR AND VENDEE.

SALE OF CHATTELS. EVICTION. Where defence is made to the payment of purchase money for breach of warranty of title, there should be proof of eviction or of an involuntary loss of possession. While the vendee holds the covenant and retains the possession he cannot withhold the purchase money. Krumbhaar v. Birch, W. N. C., June 28, 1877.

CIRCUIT COURT OF THE UNITED STATES, SOUTHERN DISTRICT OF NEW YORK.

[JUNE, 1877.]

COPYRIGHT. LABELS DEPOSITED UNDER ACT OF JUNE, 1874. · PUB

LICATION BEFORE COPYRIGHT.

MARSH v. WARREN.

The Act of Congress of June 18, 1874, is to be regarded as an amendment of the copyright laws. To acquire a copyright in any print or label deposited in the patent office it is essential that the title of the print or label be first deposited in pursuance of the provisions of the Revised Statutes concerning copyrights.

A. Broadnax, for the complainants.

Hall & Blandy; contra.

BLATCHFORD, J. The statutory provisions which confer the rights and regulate the remedies of persons who register in the patent office under the Act of June 18, 1874 (18 U. S. Stat. at Large, 78), prints or labels designed to be used for any other articles of manufacture than pictorial illustrations and works connected with the fine arts, are those which are contained in sections 4948 to 4971 of the Revised Statutes in regard to copyrights. The exclusive right of printing and publishing given by section 4952 is given to the author or proprietor only on complying with the provisions of sections 4948 to 4971. One of those provisions (§ 4956) is that no person shall be entitled to a copyright unless he shall,"before publication," deliver at the proper office (in this case the patent office) a printed copy of the title of the article in respect of which the copyright is to be claimed.

In the present case the first label and its title were registered September 24, 1875. I understand the bill to state that this label was used by the plaintiffs' assignors, in the sale of their mixture and of the bottles containing it, to which such label was affixed before that date, and as early