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credit of a note, it is manifest that a failure to pay interest is not to be ranked with a failure to pay principal. Interest is an incident of the debt, and differs from it in many respects. It is not subject to protest and notice to indorsers, or days of grace, according to the law merchant. Interest is not recovered on overdue interest, and the statute of limitations does not run against it until the principal is due. The holder of a note with interest payable annually loses no rights against the parties to it, whether makers or indorsers, by neglecting to demand it; and he has the election to do so, or wait and collect it all with the principal. In Brooks v. Mitchell, 9 Mees & Wels., 15, it was held that à promissory note payable on demand cannot be treated as over due so as to affect an indorser with equities, merely because it is endorsed a number of years after its date, and no interest has been paid on it for several years before such transfer; and the same was held in Boss v, Hewitt, 15 Wis., 260. We are referred to no case in which it has been held that failure to pay interest, standing alone, is to be regarded sufficient in law to throw such discredit upon the princi. pal security, upon which it is due as to subject the holder to the full extent of the security to antecedent equities. There is a large class of negotiable securities, the principal of which is payable only at the end of many years, but with interest payable either annually or semi-annually; and many of the notes given in the purchase of real estate and secured by mortgage, especially in the country, are of this class, as are most of the obligations for debt, contracted by public, and many of those incurred by private corporations; and it is important that the value due to their negotiable character should not be impaired by new rules, tending to lessen their currency and credit."

The cases opposed to this position, besides that in 41. Wis,, already noticed, are Newell y. Gregg, 51 Barb., 263 and 1st Nat. Bank of St. Paul v. Commrs. of Scott county, 14 Minn., 77. Newell v. Gregg is a singular case, and the decision seems open to much criticism on other points than that now in question. The plaintiff having made his negotiable note for $200, payable two years after date, with interest payable annually, sued the executor of the payee for having fraudulently transferred it to a bona fide purchaser for value, knowing that the plaintiff had paid before maturity to the payee in his lifetime; byureason of which transfer the plaintiff had been compelled to pay it again to the indorsee. The court held that an action would lie for such a cause. But they further held that the plaintiff could not recover, because at the time of the transfer of the note by the defendant,

the first installment of interest appeared to have been due and unpaid, and hence (as they held) the purchaser took the note dishonored, and the maker could, and should have set up its prior payment against him, instead of yielding to his demand. It does not appear that the plaintiff, when he paid the note to the indorsee, had any notice of the fact that the transfer was after the interest fell due; and the referee who tried the case had found that the plaintiff had been compelled to pay; not that he paid voluntarily. But aside from this it seems clear that the defendant, who had by a gross fraud transferred the note for full value, as a valid and subsisting obligation, knowing that it had been paid, was not entitled, when called on to disgorge what he had thus unrighteously obtained, to set up the defense of which the court gave him the benefit. The maker of the note surely was not bound, as between him and the defendant, to deny the purchaser's title to demand payment of the note, which the defendant had sold to him as an existing note for full value. If he had done so successfully, the result would have been to visit the evil consequences of the defendant's fraud upon the innocent purchaser, leaving the wrong-doer to retain and enjoy the fruits of his iniquity. He ought,

it would seem, to have been held estopped to say that the indorsee did not acquire good title to the note.

In First National Bank of St. Paul v. Comrs. of Scott county, 14 Minn., 77, the county had issued negotiable coupon bonds, payable five years after date, with interest annually. Some of the bonds, which had been lost by the owner or stolen from him, were afterwards purchased by the plaintiff about eight months before their maturity, and with all the coupons attached thereto. It was held that the plaintiff acquired no title, and could not recover on the bonds. Where the principal of a note is payable in installments at different times, the non-payment of an installment when due will dishonor the entire note in the hands of a subsequent purchaser. Vinton v. King, 4 Allen, 562; Field v. Tebbetts,57 Me. 359.

The decisions are also in conflict as to the right of a purchaser of a negotiable security before maturity for less than its face, to recover the full amount of the security against the maker, when the maker has a good defense against the original holder.

In Dresser v. Missouri, etc. R. R. Const. Co., 93 U. S. 92, the plaintiff had purchased the notes of the defendant for $10,000 from the payee, but had only made a partial payment of $500 upon the agreed price, when he received notice that the payee had obtained the notes by fraud. It was held that he could recover from the maker only the $500. But the court carefully distinguished the case from a purchase at a discount, with full payment of the agreed price. It is said in the opinion (p. 93): “The argument of the plaintiff in error is that negotiable paper may be sold for such sum as the parties may agree upon, and that whether such sum is large or small, the title to the entire paper passes to the purchaser. This is true; and if the plaintiff had bought the notes in suit for $500, before maturity and without notice of any defense, and paid that sum or given his negotiable note therefor, the authorities cited show that the whole interest in the notes would have passed to him, and he could have recovered the full amount due upon them.” In Lacy v. Wissman, 36 Iowa, 305, (308), it was expressly decided that a purchaser of a promissory note before maturity, without notice, for a less amount than its face, could recover against the maker the full amount of the note, whatever may have been its original infirmity. It also points out the distinction between the case of an abso. lute purchase of the paper for a consideration which is fully paid, and the numerous cases where it has been transferred by the payee as collateral security for a debt of less amount, (in which case the indorsee holds in trust for the payee, as to the overplus), or where, as in Dresser v. Missouri R. R. Const. Co., (cited above), the agreed price has not been fully paid. In Nat. Bank of Mich. v. Green, 33 Ia. 140, the indorsee who purchased at a discount was in like manner held entitled to recover the full amount of the note from the indorser.

On the other hand, it was held that the bona fide purchaser could recover from the maker only the amount paid for the note, with interest, when the note had a fraudulent inception, in the following cases: Holcomb v. Wyckoff, 35 N. J. Law 35; Huff. v. Wagner, 63 Barb. 229; Harger v. Wilson, ib. 237; and Todd v. Shelbourne, 8 Hun (N. Y. Sup. Ct.) 510. But the doctrine of these latter cases does not appear to have ever been sanctioned by the New York Court of Appeals. See Park Bank v. Watson, 42 N. Y. 490.

There are, however, two classes of cases in which it is well settled that the purchaser can recover only the amount of consideration for the transfer, with interest. One of these classes is where the plaintiff either took the note sued on as collateral security for a debt or loan of less amount from a party who held it subject to defenses, and to whom the plaintiff was bound to account for the amount collected over and above his debt. Allaire v. Hortshorne, 1 Zab. 665; Stoddard v. Kimball, 6 Cush. 469; Chicopee Bank v. Chapin, 8 Met. 40; Williams v. Smith, 2 Hill. 301. The other class is where the purchaser had only partially paid the agreed consideration for the transfer, or had notice of the makers' defense, before full payment of such consideration. Dresser v. Missouri R. R. Const. Co., 93 U. S. 92; Platt v. Beebe, 57 N. Y. 339; Hubbard v. Chapin, 2 Allen 328; Youngs v. Lee, 12 N. Y.551; Jones v. Hibbert, 2 Starkie 304; Cardwell v. Hicks, 37 Barb. 458.

Upon the question as to the rates of interest upon the bonds and coupons after maturity, and upon the judgment thereon, in the principal case, Mr. Justice Field has, in his opinion, cited the authorities fully. It may be added that when no provision is made as to interest by the terms of the note or other contract sued upon, it has been held that the rate of interest to be allowed as damages for non-payment at maturity, is to be determined by the lex fori, and not by the law of the place of contract or of payment. Ayer v. Tilden, 15 Gray 178; Ives v. Farmers' Bank, 2 Allen 236; Goddard v. Foster, 17 Wall. 123, 143.

H. M. H.

own distinct service and was entitled to distinct and separate compensation therefor. The case is precisely within the category stated by the learned annotator. It is very similar also to that of Servante and others v. James, 10 Barn. & Cres. 410, where the master of a ves. sel covenanted with the several part-owners to pay to them severally in certain proportions the moneys wbich he should receive from the government for carrying the mails; and it was held that the covenant enured to them severally and not jointly, because their interests were several. The case is also quite similar to that of an engagement with seamen for a whaling voyage, where each is to receive for his compensation a certain percentage of the profits of the voyage. Though they work together and in co-operation, they do not become partners, nor does either acquire any interest in the compensation of the others. The interest of each is separate.-Beckwith v. Talbot. In error to the Supreme Court of Colorado. Opinion by Mr. Justice BRADLEY. Judgment affirmed.

CONTRACT — VERBAL AGREEMENT ALTERING WRITTEN CONTRACT-EXPRESS STIPULATIONS AND IMPLIED PROMISES.-1. Plaintiff contracted to furnish material for a building erected under an act of Congress, the contract providing that no departure from its conditions should be made without “the written consent of the Secretary of the Treasury." Plaintiff furnished, under a subsequent oral agreement with the assistant superintendent having charge of the erection of the building, material better than tbat called for by the original contract. Held, that the assistant superintendent had no authority to enlarge the terms of the original contract, and plaintiff could not claim compensation for the value of the material furnished, but only the contract price for the material he was required by the contract to furnish. 2. Verbal agreements between the parties to a written contract, made before or at the time of the execution of the contract, are in general inadmissible to vary its terms or to affect its construction, the rule being that all such verbal agreements are to be considered as merged in the writ. ten instrument. But oral agreements subsequently made on a new and valuable consideration, and before the breach of the contract, in cases not falling within the statute of frauds, stand upon a different footing, as such agreements may, if not within the statute of frauds, have the effect to enlarge the time of performance, or may vary any other of its terms, or may waive and discharge it altogether. Emerson v. Staler, 22 How. 41; Goss v. Nugent, 5 Barn. & Ad. 65; Nelson v. Boynton, 3 Met. 402; Harvey v. Grabbain, 5 Ad. & Ell. 61; Leonard v. Vredenburg, 8 Johns. 39; Chitty on Con., 10th ed., 105. 3. Express stipulations cannot in gen. eral be set aside or varied by implied promises, or, in other words, a promise is not implied where there is an express written contract, unless the express contract has been rescinded or abandoned, or has been varied by the consent of the parties, Hence the rule is that if there be an express written contract between the parties, the plaintiff in an action to recover for work and labor done, or for money paid, must declare upon the written agreement so long as the special agreement re. mains in force and unrescinded, as he cannot recover under such circumstances upon a quantum meruit. 1 Story on Cont., 5th ed., sec. 18; Selway v. Foy, 5 Mees. & Wels. 83; Creighton v. Toledo, 18 Ohio St. 451; Weston v. Davis, 24 Me. 375; Whiting v. Sullivan, 7 Mass. 109; Merrill v. Railroad, 16 Wend. 588; Glacius v. Black, 50 N. Y. 150. When a special contract for work and services has been abandoned and put an end to, if the employer has derived some benefit from work done under it he may be made liable upon an implied promise to make reasonable remuneration in respect to such work. Bain v. Miller, 4 Taunt. 743; Inchabald v. Railway, 17 C. B., N. S. 733; Bartholomew v. Mark.

DIGEST OF DECISIONS OF SUPREME

COURT OF THE UNITED STATES. STATUTE OF FRAUD-AGREEMENT NOT SIGNED BY PARTY TO BE CHARGED-EVIDENCE OF ADMISSIONS OF DEFENDANT-SEPARATE ACTIONS.—This was an action brought by Talbot against G. C. Beckwith for breach of the following agreement: “This is to certify that the undersigned have taken two thousand two hundred and five head of cattle, valued at thirty-six thousand six hundred and eighty-one dollars and sixty cents, on shares, from George C. Beckwith; time to expire on the fifth day of December, one thousand eight hundred and seventy-two; then Geo. C. Beckwith to sell the cattle and retain the amount the cattle are valued at above. Or the amount the catile sell at, over and above the said valuation, George C. Beckwith to retain one-half, and the other half to be equally divided between C. W. Talbot, and Elton T. Beckwith, and Edwin F. Beckwith.” This agreement was signed by Talbot and the two young Beckwith's, but was not signed by defendant. It was delivered to him, however, and kept by him, and in several letters written by defendant to plaintiff he referred to “the agreement,” declared his intention to adhere to it and to hold plaintiff to it. Held, that the letters were a recognition of the agreement and bound defendant under it, and that parol evidence was admissible to show that the agreement mentioned in the letters was the one sued on. Johnson v. Dodgson, 2 M. & W.653; Salmon Falls Co. v. Goddard, 14 How. 456. Held, further, that the defence that the plaintiff was interested jointly with the defendant's two sons, and therefore could not maintain a separate action for his equal share of the profits, is not tenable. Their interests were separate. They were all employed and hired by the defendant to herd his cattle. The evidence shows that each supported himself, found his own assistants, and paid his own expenses. Each was to have as his compensation one-third of ball the increased value of the cattle at the end of the employment. Neither was interested in the compensation due to the other. Sergeant Williams, in his note to Eccleston v. Clipsham, 1 Saunders' Rep., 154, says: “Thougb a man covenant with two or more jointly, yet il tbe interest and cause of action of the covenants be several and not joint, the covenant shall be taken to be several, and each of the covenantees may bring an action for his particular damage, notwithstanding the words of the covenant are joint." In the present case the cause of action was the service performed under the contract, and each performed his

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wick, 15 C. B., N. S. 711; Addison on Cont., 6th ed., 23. Implied promises or promises in law exist only when there is no express promise between the parties-expressum facit cessare tacitum. Hence, says Chitty, a party cannot be bound by an implied promise when he has made an express contract as to the same subject-matter; which is certainly sound law unless the express contract has been rescinded or abandoned. Chitty on Cont., 10th ed., 62; Touissiant v. Martinnant, 2 Term, 105; Culler v. Powell, 6 Id. 324; Fergueson v. Carrington, 9 B. & C. 59; Dennett v. Atherton, Law Rep., 7 Q. B. 327. Apply these principles to the case before the court, and it is clear that none of the errors assigned can be sustained, the rule being that where the service is performed under an express contract there can be no recovery where there is no proof of a breach of the agreement. Where there is a breach of the agreement an action will lie for the breach, but if there be no breach no action will lie, as an implied assumpsit does not arise in such a case, unless it be shown that the parties have abandoned the express agreement, or hive rescinded or modified it so as to give rise to such an implication. Mayor v. Eschbach, 17 Md. 283.-Hawkins v. United States. Appeal from the Court of Claims. Opinion by Mr. Justice CLIFFORD. Decree affirmed.

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86

ABSTRACT OF DECISIONS OF ST. LOUIS

COURT OF APPEALS.

November Term, 1877.

[Filed February 19 and 26, 1878.) HON. EDWARD A. LEWIS, Presiding Justice.

ROBERT A. BAKE WELL, } Associate Justices. MISSOURI CORPORATION LAW-CONSTRUCTION OF CHARTER_"SHALL HAVE PERPETUAL SUCCESSION." -A charter was granted under a general corporation law which provides that every corporation shall have succession for twenty years when no period is limited in its charter. In the charter of the Masonic Hall association it was provided that the incorporators and their successors "shall have perpetual succession.Held, that the word "perpetual” as thus used signifies unbroken continuity and is not meant of duration. No period is limited in the charter and the corporation ceased to exist at the end of twenty years. 2. An order of execution against a stockholder under sec. 13, p. 291, Wagner's Statutes, is a nullity if the corporation was no longer in existence when the judgment against it was rendered. Reversed and dismissed. Opinion by LEWIS,P. J.-Scanlan v. Crawshav.

CO-LESSORS-ASSIGNMENT BY ONE-PRIVITY.-As in the case of a joint-tenant, though in respect of his companion each is seized of the whole, yet for the purpose of alienation he is seized only of his undivided ball, so, in case of co-lessors, when one of them assigns, his assignee is in privity of estate with the orig. inal lessor and landlord for an undivided ball of the leasehold only; and as his liability to the landlord for rent reserved under the lease is not by virtue of possession nor by privity of contract, but by privity of estate only, the assignee of one of two co-lessees, though in actual possession of all the premises, is liable to the landlord for one half only of the rent reserved by the lease. Rehearing denied. Opinion by BAKEWELL. J.--Board of Public Schools v. Boatmen's Ins. & Trust Co.

CONTRACT BETWEEN RAILROAD AND FERRY COMPAXY-CONSTRUCTION-MEANING OY TERMS "TO AND FROM THE ILLINOIS SHORE," "OPPOSITE St. Louis” -FRANCHISES OF CORPORATION-PUBLIC POLICYJUDICIAL NOTICE,-1, Respondent, a ferry company with a landing at East St. Louis, and appellant, a rail

road between East St. Louis and Chicago, being common carriers, agreed that respondent would furnish the necessary wharf-boats and steam ferry boats for the transit across the Mississippi at St. Louis of passengers and freight coming from, or going to appellant's railroad, at reasonable rates, and that appellant would always employ the respondent's ferry to transport acro:8 the river all persons and property taken across the river, either to or from the Illinois shore, either for the purpose of being transported on appellant's road, or having been brought to the river upon said road, so that respondent should have the profits of ferriage and no other ferry than respondent ever be employed by appellant to cross any passengers or freight coming and going on said road. Afterwards, a cattle trade sprang up and stock yards were built at Venice, a point on the Mississippi river opposite St. Louis, three miles north of respondent's landing, and the Madison Ferry company at that point made a contract with appellant providing for a car transfer over the ferry and a station of defendant's road at Venice, and for doing ferriage for appellant at that point at reasonable rates. There was no evidence that appellant took steps to introduce the car-transfer system or the transfer at the Venice ferry. The station on appellant's road and the car transfer at Venice were results of growing trade and of public demands. Appellant could not have obtained access to the river at East St. Louis so uninterrupted and convenient as at Venice. Respondent sued appellant for breach of contract, and recovered as damages the ferriage of car freights at Venice. Held that this was error. The appellant upon the evidence adduced, was not liable for ferriage of any of the car freights. No such freights were expressly named in the contract, and such freights and methods of transfer were not contemplated by the contracting companies. Such freights were meant only as should come and go in the regular course of business, unimpeded by adverse efforts of the railroad company. It was not contemplated that the railroad would compel trade into the channel of the Wiggins ferry company. 2. “ To and from the Illinois shore” in the contract, does not mean all parts of tho Illinois shore opposite St. Louis. The railroad company could not bind itself not to exercise its franchise for the purpose of transferring passengers and freight at another point opposite St. Louis when the public interest so demanded; and respondent had no franchise to ferry at all points opposite the city. A reasonable meaning must be given to the phrase "opposite St. Louis.” 3. The franchises of corporations that are common carriers are held in trust for the public, and the interests of their stockholders are subordinate to those of the public. 4. Courts will not enforce contracts which tend to prevent a railroad company from employing those facilities which are adapted to its business and to the needs of transportation. A provision in a contract between common carriers which implies that, if improvements are made or new facilities for transportation brought into play, the shipper shall be denied the advantage, are void as in restraint of trade. When a car transfer was established at Venice, appellant could not deny its use to shippers and compel them to unload and use respondent's ferry. A common carrier corporation cannot so use its franchises as to compel snippers to trade under unnecessary impediments. 5. It was the duty of respondent to furnish car transfer without any demand from appellant; and appellant was not bound to continue its track to the river, until respondent had established a car transfer ferry to connect with. Respondent not being able to do the business of car transfer, the appellant was bound to use the ferry that could and would do it. 6. Agreements that prevent competition are against public policy and void; and this is especially true of the carrying trade. Where the law refuses to sanction a contract its violation cau create no

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cause of action and appellant cannot be compelled to over matters altogether foreign to the case before the pay damages for non-performance. 7. Courts take court, can not be permitted. 2. The effect of income notice of the course of business in the country and of petent testimony once admitted, can not be done away new processes facilitating trade. Reversed and re- with, except by such a charge to the jury as will manded. Opinion by HAYDEN, J.-Wiggins Ferry force them to disregard it completely. Judgment at. Co. v. Chicago & Alton R. R.

firmed. Opinion by WRIGHT, J.-Commrs. of Han

cock Co. v. Brand. ABSTRACT OF DECISIONS OF SUPREME TRANSFER OF LIEN – VENDOR'S LIEN-RIGHTS OF

WIPE SALE - SURPLUS.-1. The mere loaning of COURT OF INDIANA.

money to a judgment debtor, to be applied by bim in November Term, 1877.

part satisfaction of a judgment which is a lien upon the HON. HORACE P. BIDDLE, Chief Justice.

debtor's land, does not operate to transfer such lien, in WILLIAM E. NIBLACK,

whole or in part to the lender, even though it was unJAMES L. WORDEN,

derstood between the parties to the transaction that it Associate Justices. GEORGE V. HowK,

should have that effect. 2. Where, in a suit brought to SAMUEL E. PERKINS,

enforce a vendor's lien for purchase money, to which COMMON CARRIERS-IMPLIED OBLIGATIONS. -The

the vendee and his wife, and also the holder of a subimplied obligations of a common carrier, arising fro

sequent mortgage executed by the vendee alone, are his relation to the public, is limited by the termini of

made defendants, and the proceeds of sale of the land his own route. Merely connecting with other lines

covered by the liens are more than sufficient to diswhich he does not control will not make him a com

charge the vendor's claim, the wife is entitled, as mon carrier over such connecting lines. In this state

against such mortgagee, to assert her contingent right the matter is regulated by statute, and the statute no

of dower in the surplus fund. 3. But such a right of where lays upon railroad companies the duty of taking

the wife must be protected in a mode which will not employment at current prices beyond the termini of

interfere with the right of the mortgagee to subject their respective routes. Opinion by BIDDLE, C. J.

the whole estate of the husband in the premises to the P. C. & St. L. R. R. Co.v. Morton, et al.

present satisfaction of the mortgage debt, in its order EXECUTION-CONTRADICTING SHERIFF'S RETURN. of priority. 4. Therefore, when such surplus is insuf-Under section 517 of the Code, the sheriff's return on

ficient to discharge fully the mortgage debt, the court an execution “shall be taken and deemed to be a re

should not (against the will of the mortgagee) direct cord.” A record imports absolute verity and cannot

one-third of the surplus fund to be put on interest by be contradicted by parol evidence. A party to an exe

the sheriff, during the life of the wife, for the purpose cution, or one claiming under him, cannot contradict

of securing her contingent dower interest. 5. The the sheriff's return of such execution, or any of the of

proper course, in such cases, is to award to the wife ficial acts of the sheriff recited in such return, except

from the surplus fund, the value of her contingent in a direct proceeding against such sheriff for making

right of dower therein, to be ascertained by reference a false return. 48 Ind., 397. Opinion by Howk, J.

to the tables of recognized authority on that subject, in Stockton, et al. v. Stockton.

connection with the state of health and constitutional SCHOOL-FUND MORTGAGE SALES-RECORD NE

vigor of the wife and her busband. Order of distri

bution set aside, and remanded to the court below for CESSARY TO VALIDITY.-Under the statute which provides that in sales of lands mortgaged to the school

proper modification. Opinion by Scott, J. Wright

and Johnson, J.J., dissented to all but the first propofund, etc., “the county treasurer shall also attend and

sition.- Unger v. Leiter. make a statement of such sales, which shall be signed by the auditor and treasurer, and after being recorded in the auditor's office, shall be filed in the treasurer's

ABSTRACT OF DECISIONS OF SUPREME office, etc.," the making of such a statement by the auditor and treasurer is necessary to the validity of such

JUDICIAL COURT OF MASSACHUSETTS. sale. A strict compliance with all the substantial pro

March Term, 1877. visions of the law necessary in making such sales under school-fund and other similar mortgages, in or

HON. HORACE GRAY, Chief Justice. der to divest the title of the mortgagor. 16 Ind., 116;

JAMES D. COLT, 21 Ind., 421; 29 Ind., 1. Compliance with the provi

SETH AMES, sion of the statute that the deeds shall be executed by

MARCUS MORTON, the county auditor and entered in the record of the

WILLIAM C. ENDICOTT,

Associate Justices.

Oris P. LORD, board of county commissioners before delivery, is also

AUGUSTUS L. SOULE, a necessary step in the progress of the sale. The entry on the commissioners' record is a condition precedent CONTRACT-AGENCY-EVIDENCE.-F and D made to the delivery of the auditor's deed. Opinion by NIB

a contract, by which it was agreed that F should make LACK, J.-Arnold, et al. v. Gall', et al.

bricks, and D was to furnish all the necessary materials except the clay. The manner in which F was to be

paid for his work was specified, and it was provided ABSTRACT OF DECISIONS OF SUPREME

that the bricks when finished were to be the property COURT COMMISSION OF OHIO.

of D. F bought wood from the plaintiff, which was

consumed in burning the bricks, with the knowledge December Term, 1877Filed January 30, 1878.

of D. Held, that F had no duty to obtain the wood, Hon. LUTHER DAY, Chief Justice.

and whether he acted as agent of D was a question for JOSIAH SCOTT,

the auditor to determine on the facts before him, and
D. T. WRIGHT,
W. W. JOHNSON,
Associate Justices.

the report of the auditor, stating the substance of

those facts, was proper evidence upon tbat question. T. Q. ASHBURN,

Opinion by ENDICOTT, J.-Emerson o. Patch. EVIDENCE-COLLATERAL FACTS.-1. Evidence must STATUTORY PLEADING – GENERAL DENIAL- Axbe confined to the issue, and even for the purpose of SWER.-1. The allegation in the defendant's answer corroberating the testimony of witnesses, an inquiry that “if the plaintiff shall prove,” etc., is not a direct into facts entirely collateral, leading to a controversy and positive allegation required by the rules of plead

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ing, and sets up no defense. Suit v. Woodhall, 116 Mass. 547; Jackman v. Doland, 116 Mass. 550. 2. But this is not material in this case, because it was competent for the defendant, having also filed a general de. nial, to introduce the same defense thereunder. 3. Under the system of pleading established by the statutes re-enacted in Gen. Stats., Ch. 129, the answer must deny in clear and precise terms every substantial fact intended to be denied, and must set forth in clear specifications every substantial fact intended to be relied on in avoidance of the action. $$ 17, 20. But it has been held that a general denial puts in issue all the facts necessary to be proved by the plaintiff to make out a prima facie case. Davis v. Travis, 98 Mass. 222. Opinion by MORTON, J,-Caverly v. McOwen.

CONSTITUTIONAL LAW_TAX ON CORPORATE FRANCHISE.—The constitution of the Commonwealth provides that the legislature may impose and levy reasonable duties, and excises upon any goods, wares, merchandises and commodities whatever, brought into, produced, manufactured or being within this state. Commodity is a general term, and includes the privilege and convenience of transacting a particular business; and upon persons carrying on such business it has never been questioned that the legislature may levy an excise or provide that a license must be obtained to transact it. Gen. Sts., sec. 50. Upon the franchise conferred by the legislature upon a corporation, or exercised by a corporation of another state, an excise may be laid. Portland Bank v. Apthorp, 12 Mass. 252; Atty.-General v. Bay State Min. Co., 99 Mass. 148. It is not a tax upon property. And such tax can only be imposed upon corporations in the exercise of corporate powers, and not where they are in the hands of receivers. Columbian Book Co. v. DeGolger, 115 Mass. 67, 69. Opinion by ENDICOTT, J.Com. v. Lancaster Sav. Bank.

tified. Such evidence is competent only when founded on facts within the personal knowledge and observation of the expert, or upon hypotheses of the findings of the jury. It is not the province of an expert to draw inferences of fact from the evidence, but simply to declare his opinion upon a known or hypothetical state of facts,-State v. Bouman.

DIVERTING FLOW OF WATER-INDIVIDUAL LIABILITY OF OFFICERS OF CORPORATION.--This is an action by the owner of a mill, on an outlet from a certain swamp, to recover damages against the Canal Company and certain of its officers, individually, for diverting a considerable part of the water which was accustomed to flow by the mill, by cutting a canal above the mill. Held, any proprietor, through whose land water flows, has a right to a reasonable use of the water for a mill or any other purpose, provided he does not materially damage the proprietor above or below him. Such right could not be impaired by any notice by the company that they intended to drain the swamp. The court will permit no errors to be assigned here which were not assigned in the court below, except that the court, in which trial was, had no jurisdiction and that the complaint does not contain a sufficient cause of action. The officers of the company are liable individ. ually, if they did not pursue the course marked out by the act of incorporation, no statutory remedy being given plaintiff in a case of this kind, his remedy at common law still exists. Williamson v. Flat Swamp Ca. nal Co.

ACTION AGAINST SHERIFF FOR NEGLIGENCE--ALTERATION OF PROCESS.-A summons and requisition for personal property, in an action for claim and deJivery, was issued by the clerk of the Superior Court of Davie county to the sheriff of Davidson; subsequently the property being supposed to be in Forsythe county, the process was delivered up by the deputy sheriff of Davidson, in whose hands it had been placed, to the clerk of Davie Superior Court, who altered it by striking out the word “Davidson” wherever it occurred, and inserting “Forsythe.” The process was then sent to the sheriff of Forsythe. An action is now brought against the sheriff of Davidson by the plaintift for negligence, and a motion is made to strike out “Forsythe," so the process might read as at first. Held, the alteration, if made by an unauthorized party, could be stricken out, but the clerk had authority to alter process. Process can be amended, but not where third parties have acquired rights which may be affected by the amendment. One effect of the amendment would be to shift the burden of proof from the plaintiff to the sheriff of Davidson. The sheritf of Forsythe had also a right to have the process remain unaltered. The court declines to express, at this stage, any opinion whether the plaintiff can prove facts tending to fix the sheriff of Dayidson with liability as the process stands, or as to right of defendant to use rebutting testimony. Opinion by RODMAN, J.--Phillips v. Holland.

66

ABSTRACT OF DECISIONS OF SUPREME COURT OF NORTH CAROLINA.

January Term, 1878.
Hon. W. H. N. SMITH, Chief Justice.

EDWIN G. READE,
W. B. RODMAN,
W, P. BYNUM,

Associate Justices. W. T. FAIRCLOTH, CRIMINAL LAW-Mis-TRIAL-AUTRE FOIS ACQUITRES INTER ALIOS ACTA.-1. Where a prisoner was put on trial, jury impanneled and charged with his case, and at the suggestion of the prosecuting officer that the indictment was defective, a juror was withdrawn and a mis-trial had: Held, if the first indictment was so defective that (as here) no judgment could have been pronounced upon the prisoner il convicted, it was proper to put him on trial upon another and sufficient indictment for the same offense. 2. It is not competent to prove that certain footprints did not correspond with the tracks of the prisoner's brother, the prisoner not having alleged that his brother committed the offence with which he stood charged. Evidence tending to show the innocence of A is not admissible as tending to show the guilt of B. It is res inter alios acta. Opinion by BYNUM, J.-State v. England.

CRIMINAL LAW-MURDER BY POISON-EXPERT Ev. IDENCE.-In an indictment for murder by poisoning, a physician, examined as an expert, was allowed to testify that, from the symptoms and manner of death, as deposed by witnesses, and from the post mortem examination, as deposed by a medical man, he believed the death was caused by strychnine. Held, error. It is obviously improper for any one, expert or not, to express an opinion warranted only by assuming the truthfulness and accuracy of wbat witnesses have tes

CORRESPONDENCE.

THE TEXAS CATTLE CASE. To the Editor of the Central Law Journal :

In a note to Railroad Company v. Husen, ante, 172, “G. G. V.” says he presumes that the fact was not brought before the court that all Texas, Mexican and Indian cattle brought into Missouri between the first days of March and December, bring with them a deadly disease, which is almost invariably fatal to domestic cattle exposed to association or vicinity with those imported. “G. G. V.” is quite right. No such fact was brought to the attention of the court, and the decision was reached, most unquestionably, in the most profound igaorance of the existence of any such all-im

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