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Vol. IV.]

DIGEST OF Cases.

[No. 12.

transfer any such note, not so inscribed, knowing it to have been given on such a consideration. Held, that the act was unconstitutional and void. Cranson v. Smith, S. C. Mich., Cent. L. J., November 2, 1877.

4. INDORSEMENT OF NOTE BY THIRD PARTY BEFORE MATURITY, ETC. — When a promissory note, made payable to a particular person or order, is first indorsed by a third party, such third person is held to be an original promisor, guarantor, or indorser, according to the nature of the transaction and the understanding of the parties at the time the transaction took place. If he put his name in blank on the back of the note at the time it was made, and before it was indorsed by the payee, to give the maker credit with the payee, or if he participated in the consideration of the note, he must be considered as a joint maker of the note. If his indorsement was subsequent to the making of the note and to the delivery of the same to take effect, and he put his name there at the request of the maker, pursuant to a contract of the maker with the payee, for further indulgence or forbearance he can only be held as guarantor, which can only be done where there is legal proof of a consideration for the promise, unless it be shown that he was connected with the inception of the note. But if the note was intended for discount, and he put his name on the back of the note with the understanding of all the parties that his indorsement would be inoperative until the instrument was indorsed by the payee, he would then be liable only as a second indorser in the commercial sense, and as such would be entitled to the privileges which belong to such an indorser. Good v. Martin, S. C. U. S., Chicago L. N., November, 10, 1877.

See MANDAMUS.

CONSTITUTIONAL LAW.
See BILLS AND NOTES, 2.

CONTEMPT.
See INJUNCTION.

CORPORATION.
• See BANKS AND BANKING.

EJECTMENT.
See EVIDENCE, 1, 2.

EVIDENCE. 1. JUDGMENT. - EJECTMENT. — POSSESSION. - While a judgment in ejectment is conclusive evidence that defendant was in possession on the day the writ was served, it is only primâ facie evidence that defendant continued in possession. Miller v. Henry, S. C. Pa., W. N. C., November 1, 1877.

2. IN AN ACTION FOR MESNE PROFITS, AFTER A JUDGMENT IN EJECTMENT, the defendant may show that she was not in possession after the service of the writ, but merely resided on the premises as a guest or housekeeper of a co-defendant. And such evidence is not rendered inadmissible by the fact that it also tends to show that she was not in possession at the time the writ was served. 16.

Vol. IV.]

Digest OF CASES.

[No. 12.

INJUNCTION. CONTEMPT OF PROCESS OF STATE COURT BY RECEIVER OF FEDERAL COURT. — On the 6th of March, 1873, an injunction was granted by the state court against the Cairo and Vincennes Railroad, restraining its agents, employees, and attorneys from the use of an avenue in the city of Cairo for loading and unloading cars, from leaving them standing thereon, or making up trains, and from using railroad tracks for switching cars or trains thereon, or for any purpose other than for transit of cars and trains over their tracks, &c. This writ was served on an agent of the corporation on the next day. On the 5th of March, 1874, plaintiffs in error were appointed by the United States district court for the Southern District of Illinois, receivers of the road, and entered upon the discharge of their duties. They disregarded the injunction, and switched daily upon the forbidden track large numbers of cars to be loaded and unloaded, &c. Held, that the receivers acted in contempt of the state court, and are amenable thereto. The order and writ are matters of public record, of which all persons are bound to take notice at their peril, and the receivers are legally the agents of the corporation, although they are under the direction of the court appointing them. The federal court could not legally dissolve the injunction granted by the state court. Safford v. People, s. C. III., Cent. L. J., November 2, 1877.1

See NATIONAL BANK, 1, 2.

JUDGMENT. TORT. JUDGMENT FOR. — JOINT AND SEVERAL WRONG-DOERS, — K., on April 5, mortgaged personal property to S. to secure indorsements. S., owing defendant, assigned the mortgage to him to secure the debt. On October 4 K. gave to G. a second mortgage for $4,000 (which was used to pay note of K. indorsed by S. and G.) on the property which also covered other property. October 12 K. sold the property for $6,000, of which sum G. received $3,500 and defendant $2,500. S. paid nothing on the secured indorsements. November 2 bankruptcy proceedings were commenced against K., and plaintiff appointed assignee, who brought action against G. for the $3,500 received by him, and another for the money paid on the notes. The first-named suit resulted in a judgment for $1,000 which was satisfied, and the second was settled for $2,000 and G. was released. Held (1), that though the mortgage to S. was originally valid, he having paid nothing, the sum paid to defendant on it was a preference, and defendant liable to the assignee therefor; and (2) that the judgment against G. and its satisfaction and the release did not bar

1 Concerning the opinion in this case the cept the court by which he is appointed, and editor of the Central Law Journal writes as fol- no other court can, without consent of that lows: “ The opinion is written in heated court, exercise any more authority over him language, and cites no authorities. It is, in than it can exercise over the judge of the court vur judgment, a complete judicial faux pas. It whose agent he is. We are profoundly astonproceeds upon the false premise that a receiver ished that such a decision should proceed from is the agent of a corporation whom he dispos- any appellate bench in the United States." — sesses. A receiver is the agent of no one ex. EDITOR.

Vol. IV.]

Digest of Cases.

[No. 12.

an action therefor against defendant. Sessions v. Johnson, S. C. U. S., Albany L. J., October 27, 1877.

See BILLS AND NOTES, 1.

JUDGMENT NOTE.
See BILLS AND NOTES, 1.

MANDAMUS. SCHOOL BOARD. — POWER TO RECEIVE DRAFT, ETC. - W. desired to purchase some school bonds, and on September 10 sent a draft on J. C. & Co., in payment therefor, to the order of “School Board, Muncy, Pa.” The draft was received at a special meeting of the board, on September 13, in the absence of the treasurer, and bonds were ordered to be issued on payment of the draft. The draft was handed to the treasurer on his return after bank hours on September 16, and was sent by him properly endorsed, on the 17th, for collection, to his bank at W., some eleven miles from Muncy on the road to Philadelphia. Owing to a delay in the mail, the draft was not received by the W. bank until the evening of September 18. On September 20 the draft was presented for payment, and protested, the drawees having failed on September 18. In a mandamus by W. against the School Board to compell an issue of bonds: Held, that the respondents were guilty of no laches in the presentation of the draft. Muncy, fc., District v. Commonwealth, S. C. Pa., W. N. C., October 25, 1877.

MARRIED WOMAN. 1. MORTGAGE OF MARRIED WOMAN. — While the bond and mortgage, or judgment, given by a married woman to secure purchase money will be enforced against the land, upon the equitable principle that she may not withhold the price and retain the land, such instrument creates no personal obligation on the part of the married woman, and gives the holder no right to participate in the distribution of her estate in the hands of her adıninistrator. Sawtelle's Appeal, S. C. Pa., W. N. C., October 25, 1877.

2. CLAIMS FOR MEDICAL SERVICES RENDERED TO a married woman are not good against her separate estate, unless it is proved that they were rendered at her request and on her credit. Ib.

MASTER AND SERVANT. EMPLOYMENT OF SERVANT BY JOINT MASTERS. — T. was employed as a signal-man by the G. Railway Company at a station which abutted upon a station of the N. Railway Company. The business of T. was common to both stations, and was to signal the trains of both companies, and he was called one of the joint-station staff, all of whom were appointed and paid by the G. Company, but the expenses of their salaries was borne equally by the two companies. Held, that he was employed as the servant of both companies, and the N. Company was not liable for his death through the negligence of one of its servants. Swainson v. North Eastern Railway Co., High Ct. England, Albany L. J., October 13, 1877.

(No. 12.

Vol. IV.]

Digest Of Cases.

MEDICAL SERVICES.
See MARRIED WOMAN, 2.

MORTGAGE.
See MARRIED WOMAN, 1.

NATIONAL BANK. 1. ENJOINING TAXATION OF NATIONAL BANK SHARES. — WHEN BANK A PROPER PARTY. — A bank is a proper party complainant to a bill in equity, to enjoin the collection of a tax upon its shares, assessed against its stockholders, if it be shown that the bank would be subjected to a multiplicity of suits, whereby its business will be interfered with, ito credit impaired, and its stock depreciated. City National Bank of Paducah v. City of Paducah, C. C. U. S. Ky., Čent. L. J., October 19, 1877.

2. INJUNCTION TO STAY TAX. — GROUNDS OF. — MULTIPLICITY OF SUITS. — The remedy by injunction to stay the collection of a tax upon personal property may be invoked where the enforcement of the tax would lead to the multiplicity of suits, or where the law authorizing the tax is itself in valid. 16.

3. TAXATION OF NATIONAL BANK SHARES. – RATE OF TAXATION. – Where, by the laws of a state or municipality, different rates of taxation are imposed upon different classes of moneyed capital, such state or municipality may not tax the shares of national banks at the highest rate imposed upon any class, regardless of the proportion which that class bears to other classes ; nor, upon the other hand, is it confined to the lowest rate imposed upon any class. Where different rates of taxation are prescribed for different classes of “other moneyed capital,” the rate imposed upon shares in national banks should not, as a general rule, exceed that imposed upon other moneyed capital of the same class, viz. : shares in state banks. Where practically the entire banking capital of the State of Kentucky was exempted from taxation, beyond fifty cents per share, and included in this enumeration was a state bank in Paducah, the capital stock of which exceeded that of all the national banks located there, it was held that an ordinance imposing a tax of $1.05, nominally upon all banks in the city, but from which the state banks had been adjudged exempt, was an unlawful discrimination against the national banks, and therefore invalid. 16.

4. IBID. — DEDUCTION OF SHAREHOLDER'S INDEBTEDNESS. - Where other moneyed capital than bank stocks was also taxed at $1.05, but with a proviso that, from the amount of this capital, the entire indebtedness of the owner should be deducted before the assessment was made, and no such deduction was allowed where such capital consisted of shares in national banks, the tax upon such shares was held in valid. Ib.

5. IBID. — DEDUCTING REAL ESTATE OWNED BY BANK. — DOUBLE TAXATION. — The tax was also held invalid for the reason that no provision was made for deducting the value of real estate owned by the bank, which was thereby subjected to double taxation. 16.

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NEGLIGENCE. EJECTION OF PASSENGER. — RETENTION OF PASSENGER'S MONEY BY CONDUCTOR. — CONTRIBUTORY NEGLIGENCE. — DUTY OF CONDUCTOR, ETC. — The plaintiff took a seat in a railroad car to be carried to the next station on defendant's road, but not having the usual fare for that point, twenty-five cents, handed the conductor a five dollar bill out of which to take the fare. The conductor was unable to make change, but promised to do so at the next station. On arriving there, which was the end of his journey, the plaintiff seeing the conductor getting on the train and starting it without giving him his change, ran after the train and got onto the car as it was moving from the station, for the sole purpose of getting his money. The conductor, on demand for his change, handed him back the same bill, and, as plaintiff claimed, told him to get off the train as quickly as possible, which he did, and was thereby injured. It did not appear that the remark of the conductor caused the plaintiff to act differently from what he otherwise would have done, nor that he requested that the train should be stopped or slackened up to enable him to get off in safety. Held, (1) that at the time of the accident the relation of passenger and carrier did not subsist between the plaintiff and defendant ; (2) that at the time of the accident the duties and obligations of the company towards the plaintiff were such as existed in his favor as one of the general public growing out of the failure of the conductor to return him his money ; (3) the nature and effect of the remark of the conductor and the action of defendant in leaving the train were questions for the jury. It was error for the court to charge the jury that if the conductor ordered or directed the plaintiff to get off the train, or told him to get off as quick as he could, while the same was moving, without stopping it or slackening its speed, then the defendant would be liable for injuries resulting from jumping off, provided in so jumping he exercised due care and prudence. 1st. Because such charge assumed as a matter of law for the court, and not of fact for the jury, that such an order or remark caused the plaintiff to leap from the train while in motion ; and 2d. Because it took from the jury not only the question of liability of the defendant, but also the question of contributory negligence of the plaintiff as to the act of jumping off, and, as matter of law, made the company liable for all consequences, however imprudent the act might have been, although voluntary, if the mode and manner of jumping were prudent. — Krouse v. Pittsburg, Cin., f St. L. R. R. Co., S. C. Ohio, Cent. L. J., October 19, 1877.

See BILLS AND NOTES, 1; MASTER AND SERVANT.

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PATENT.
See BILLS AND NOTES, 2.

PAYMENT. PRESUMPTION FROM LAPSE OF TIME. -- It is a question for the court whether a given state of undisputed facts will rebut such a presumption as that of payment from lapse of time. To a scire facias sur recogni

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