Page images
PDF
EPUB

Vol. IV.]

DIGEST OF CASES.

[No. 3.

ing the negotiation, take it into his own hands and complete it either at or below the price limited, and then refuse to pay the commissions. Plaintiff's right to recover commissions for making a sale is not affected by the fact that he was to be one of the purchasers if he acted openly and fairly. Reed v. Reed, S. C. Pa., Leg. Int., February 9, 1877.

COMMISSION.

See BROKERAGE.

COMMON CARRIER.

NEGLIGENCE. LIMITING COMMON LAW LIABILITY BY SPECIAL CONTRACT. — Where a railway company has, in fact, only one rate at which it carries or offers to carry cattle from O. to S., although it may have posted up, in the office of its agent at O. other and higher rates; and an owner of cattle, without anything being said about any special contract, but with the consent of the company, places his cattle in the company's cars at O., to be transported to S.; and the agent of the company at O. then presents to the shipper a certain special contract for carrying said cattle at the full rate at which the company carries cattle, though less than said posted rates and with certain restrictions, limitations, &c., as to the company's responsibility; and the agent then demands that the shipper shall sign said special contract or have his cattle unloaded; and the agent gives to the shipper no other option or alternative; and the shipper then signs said special contract: Held, that said special contract, so far as it attempts to restrict the liability of the railway company, or to impose additional burdens upon the shipper as conditions precedent to a recovery for damages resulting from the negligence of the railway company, is without consideration and void. Kans. Pac. R. W. Co. v. Reynolds, S. C. Kaus., Cent. L. J., January 19, 1877.

CONSTITUTIONAL LAW.

WHICH ACT WAS PASSED.

OF THE POWER OF THE COURTS TO EXAMINE INTO MANNER IN - A valid statute can only be passed in the manner prescribed by the Constitution; and when the provisions of that instrument, in regard to the manner of enacting laws, are wholly disregarded in respect to a particular act, it must be declared a nullity, though having the forms of authenticity.

Whenever a question arises in a court of law as to the existence of a statute, or as to the time when it took effect, or as to its precise terms, the judges who are called upon to decide such question have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question; the best and most satisfactory evidence in all cases being required. And if a statute can be shown by undoubted and competent evidence never to have passed the two houses of the legislature, substantially, as it was approved by the governor, and sealed with the great seal, and published, it is a nullity; and it is the duty of the court so to declare it. Legg v. Mayor of Annapolis, Ct. App. Md., Am. Law Reg., January, 1877. See MUNICIPAL BONDS, 2; PLEADING AND PRACTICE, 4; TAXATION.

Vol. IV.]

DIGEST OF CASES.

[No. 3.

CONTRACT.

See ADMIRALTY, 1; COMMON CARRIER; MUNICIPAL BONDS.

[ocr errors]

CONVERSION OF STOCK.

See DAMAGES.

CRIMINAL LAW.

[ocr errors]

1. SENTENCE AFTER ADJOURNMENT OF COURT FOR TERM AT WHICH TRIAL IS HAD. If the judge who tries an indictment upon which a verdict of guilty is found fails to pronounce sentence during the term of the court at which the verdict was found, by accident, mistake, or design, he may do so at any subsequent term, and so may any other judge holding the same court. U. S. v. May, S. C. D. C., W. L. R., January 22, 1877. 2. Assault WITH INTENT TO COMMIT MANSLAUGHTER. Under a statute which provides that "if any person shall unlawfully kill any human being without malice express or implied, either voluntarily upon a sudden heat, or involuntarily, but in the commission of some unlawful act, such person shall be deemed guilty of manslaughter;" and a person indicted for an assault, or an assault and battery with intent to commit manslaughter, may be convicted of the whole charge, or acquitted of the attempt to commit manslaughter and found guilty of the misdemeanor only. State v. Throckmorton, S. C. Ind., West Jur., January, 1877.

DAMAGES.

CONVERSION OF STOCK. In an action for conversion of stock, if plaintiff waives the tort and sues in assumpsit, the measure of damages is the market value of the stock at the time of conversion. It is not the rule, even in the action of trover in such a case, that the plaintiff is entitled to recover the highest price which the stock would have commanded at any time before the trial. That rule is confined to the case where there is a duty or obligation devolved upon a defendant to deliver such stock at a particular time, and that duty or obligation has not been fulfilled. Wagner v. Peterson, S. C. Pa., Leg. Int., February 9, 1877.

DIVORCE.

See PLEADING AND PRACTICE, 1.

ELECTION.

[ocr errors]

1. PRESIDENTIAL ELECTOR. - A MEMBER OF THE CENTENNIAL COMMISSION holds an office of trust under the United States which makes him ineligible as a presidential elector. In re Corliss, S. C. R. I., Am. Law Reg., January, 1877.

2. INELIGIBLITY BY REASON OF HOLDING SUCH OFFICE at the time of the election cannot be removed by a subsequent resignation of the office. Ib.

3. THE EFFECT OF SUCH INELIGIBILITY of the person receiving the

Vol. IV.]

DIGEST OF CASES.

[No. 3.

highest number of votes is to avoid the election. It does not elect the person having the next highest number of votes. lb.

JURISDICTION.

OF U. S. COURTS. UNDER THE ACT OF MARCH 3, 1875, the United States circuit courts have jurisdiction over a suit in equity to foreclose a mortgage, given to secure a promissory note, where the assignee and holder is a citizen of another state, though the assignor could not, by reason of citizenship, have brought the suit. Seckel v. Backhaus, C. C. U. S. E. D. Wisc., Chicago L. N., February 3, 1877.

MANDAMUS.

1. APPLICATION FOR MANDAMUS WHICH DEPENDS ON VALIDITY OF STATUTE. — On an application for a mandamus, the right to which depends upon the question whether a certain public statute, appearing in the statute book with all the prescribed forms of authentication, is valid or not, the onus of proof is upon the applicants, with a strong presumption against the right asserted by them; and before that right can be recognized and judicially declared in the face of a public statute, having almost a conclusive presumption in its support, the applicants are bound to furnish the most conclusive evidence of the truth of the facts upon which they rely to invalidate the statute. Legg v. Mayor of Annapolis, Ct. App. Md., Am. Law Reg., January, 1877.

2. NEVER A PREVENTIVE WRIT. Mandamus is a writ commanding the performance of some act or duty therein specified, in the performance of which the applicant for the writ is interested, or by the non-performance of which he is aggrieved or injured. As a preventive remedy simply, it is never used. Its use is confined to those occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. A mandamus does not lie to prevent a person from being disturbed or molested in the exercise of the functions and powers pertaining to his office. 1b.

See PLEADING AND PRACTICE, 2, 3.

MUNICIPAL BONDS.

SUBSCRIPTION TO STOCK. WHERE ACT CONTAINS NO CONDITION AS TO TIME. CONSTRUCTION OF AGREEMENT TO BUILD WITHIN SPECIFIED TIME, ETC. — A township voted to subscribe to the capital stock of a railroad company, and to issue its bonds in payment on condition that the road was completed, equipped, and running from P. to D. within five years. The road was built to within one mile of D., and a part of another road leased, by which arrangement the company ran its trains from P. to D. The company tendered the stock and requested the township officers to subscribe, which they refused to do. By this refusal the company was delayed in completing its own road to the city limits until after the five years had elapsed: Held, that the company had substantially complied with the conditions, and that it was the duty of the township to have subscribed to the stock of the company, the condition

Vol. IV.]

DIGEST OF CASES.

[No. 3.

referring to the payment, and not the subscription; that as the act authorizing the vote contained no conditions as to the time of subscribing, but only as to the payment of such subscription, it was the duty of the township officers to subscribe at once; and if, by reason of default, the company did not build its road within the time specified, the township could not plead such non-compliance in defence to an action by the company. People v. Supervisor, &c. of Danville Township, S. C. Ill., Mo. West. Jur., February, 1877.

NEGLIGENCE.

See COMMON CARRIER.

NUISANCE.

See TRESPASS.

PLEADING AND PRACTICE.

[ocr errors]

1. DIVORCE. AVERMENTS OF PETITION. In proceedings for divorce (except where the injury complained of was committed within the state, or while one or both of the parties resided within it), residence within the state for twelve months next before the institution of the suit is a constitutive and jurisdictional fact, which must be alleged in the petition. And a decree of divorce, rendered upon a petition which lacks the averment of this jurisdictional fact, is coram non judice and void. Cole v. Cole, St. Louis (Mo.) Ct. of App., Cent. L. J., January 19, 1877.

2. MANDAMUS. IF THE ANSWER TO AN APPLICATION FOR A MANDAMUS contains or sets up any sufficient reason for refusing the writ, though it be in other respects evasive and irresponsive, it should not be quashed as a whole. Legg v. Mayor of Annapolis, Ct. App. Md., Am. Law Reg., January, 1877.

3. WHERE THE ANSWER TO A PETITION FOR A MANDAMUS IS QUASHED, the allegations of the petition are not authorized to be taken pro confesso; nor is the judge authorized to enter judgment as by default for want of answer, or by nil dicit. The case must be heard ex parte, and the mind of the judge satisfied both as to the law and the facts, before the writ can be ordered. Ib.

4. STATUTE WILL NOT BE DECLARED INVALID UPON ADMISSIONS OF PARTIES. It is not competent for parties, though engaged in an adverse litigation, to procure a public statute, affecting the public interest, to be declared a nullity, upon their mere allegations and admissions as to the manner in which the statute was enacted by the legislature. Proof of a higher and more reliable character should be required in such case. Ib.

5. LIBEL BY INSURER AGAINST CARRIER. In a libel by the insurer, who has paid the loss to the assured, against the carrier, by whose wrongful act the loss occurred, the respondent is not permitted to set up as a defence that the insurer was not legally bound to indemnify the assured for the loss sustained by such wrongful act. Such libel is properly filed in

1 The report of this cause is accompanied by a note in which decrees in divorce cases obtained by fraud, which was the subject of judi

cial remark in the principal case, are quite fully and intelligently discussed. EDITOR.

Vol. IV.]

DIGEST OF CASES.

[No. 3.

the name of the insurer, and it is not necessary nor proper in admiralty that the action be brought in the name of the assured for the use of the insurer. Amazon Ins. Co. v. The Iron Mountain, D. C. U. S. So. D. Ohio, Cent. L. J., February 2, 1877; Chicago L. N., February 3, 1877.

6. SLANDER. PROOF OF GENERAL RUMOR.- In England, and in some of the United States courts, it has been held that, under the general issue, in slander, the defendant may prove in mitigation of damages that when the words were uttered a general rumor or report existed in the neighborhood that the plaintiff was guilty of the offence charged, but in Pennsylvania the rule is different. Pease v. Shippen, S. C. Pa., Leg. Int., February 9, 1877.

See CRIMINAL LAW, 1; MANDAMUS, 1; REMOVAL OF CAUSES.

PRESIDENTIAL ELECTOR.

See ELECTION.

REMOVAL OF CAUSES.

CAUSE PENDING READY FOR RETRIAL. Under the Act of March 3 1875, providing for the removal of causes from the state to the federal courts, a cause once tried, but pending, ready for retrial when the act was passed, is removable. Crane v. Reeder, C. C. U. S. E. D. Mich., Albany L. J., February 10, 1877.

SLANDER.

See PLEADING AND PRACTICE, 6.

STOCK.

See DAMAGES.

TAXATION.

1. WHARFAGE TAX. WHEN TONNAGE TAX MAY BE IMPOSED BY CITY. A city cannot levy a tax in the nature of a tonnage duty upon vessels or commerce, nor can it do so by way of discrimination. But a city, under legislative authority, or a riparian owner, can lawfully charge reasonable compensation for the use of expensive and artificial conveniences which a vessel may use at its option, there being ample space elsewhere for it to land within the harbor where no artificial or expensive improvements have been made. U. W. Union Packet Co. v. City of St. Louis, D. C. U. S. E. D. Mo., Cent. L. J., January 19, 1877.

2. IBID. CONSTITUTIONAL LAW. THE ORDINANCE OF THE CITY OF ST. LOUIS prescribing certain wharfage dues at the improved wharves constructed by it, graduated according to the size of the vessel, to be ascertained by its tonnage, is not in conflict with the provisions of the federal Constitution in respect to interstate commerce, and the prohibition that "no state shall, without the consent of Congress, lay any duty of tonnage." Ib.

« PreviousContinue »