Page images

doctrine of the cases that have been cited, that the fruits of his labor and expenditures." The this court will not permit a inan knowingly, though second, in which all the cases concur, is that a. but passively, to encourage another to lay out license, coupled with an interest, under which exmoney under an erroneous opinion of title; and penditures have been made with the expectation, the circumstance of looking on is, in many cases, induced by the licensor, of enjoyment, can not be as strong as using terms of encouragement. Still, withdrawu without tendering the money expended. it must be put upon the party to prove the case by Clement v. Durgin, 5 Maine, 9; Woodburg v. Parghstrong and cogent evidence, leaving no reasonable ley, 7 N. H. 237; Addison v. Hack, 2 Gill. 521;. doubt that he acted upon that sort of encourage- | McKellip v. McIlhenny, 4 Watts. 317. ment. It is upon the plaintiff to prove, not merely The only case we have on the subject tends in to raise a probable conjecture, but to show, upon the same direction. Caldwell v. Scott, 10 Yer. highly probable grounds, a case of bad faith and 209. And the reservation, from a literal adhesion bad conscience against the defendant." Lord to the statute of frauds,• made in Patten v. Romilly, as master of the rolls, had the question McClure, M. & Y.333, and noticed above, is placed before him repeatedly, and thus states the law: upon the principles of these decisions, namely, "The principle on which the defendants rely is fraud and equitable estoppel. one often recognized by this court, namely: that if The demurrer must be overruled. one man stand by and encourage another, though but passively, to lay out money under an erroneous

IMPLIED WARRANTY ON SALES OF opinion of title, or under the obvious expectation

CHATTELS. that no obstacle will afterwards be interposed in “ The maxim of the common law, caveat emptor, the way of his enjoyment, the court will not per- is the general rule applicable to sales, so far as. mit any subsequent interference with it by him quality is concerned.

So far as an ascerwho formally promoted and encouraged those acts tained specific chattel, already existing, and which of which he now complains, or seeks to obtain the the buyer has inspected, is concerned, the rule of advantage. “ This is is the rule,” he adds, “ laid caveat emptor admits of no exception by implied down in Dan: v. Spurrier, 7 Ves. 231; Powell v. warranty of quality.” Benj. on Sales, sec. 614. Thomas, 6 Hare, 300, and many other cases, to The application of the foregoing rule to sales of which it is unnecessary to refer, for the principle stock, municipal bonds, etc. (if it is applicable) is clear." Rochdale Canal Co. v. Sling, 16 Beav. is a matter of some interest to the profession. It 634; Duke of Devonshire v. Eglin, 14 Beav. 530; is not easy to formulate a rule, but we would call Duke of Beaufort v. Patrick, 17 Beav. 75; Mold v. attention to the following cases: Otis v. Cullom, Wheatcroft, 27 Beav. 510. Two of these cases in- 92 U. S. 447, was a case of this character. The volved the carrying of water across the land of city of Topeka issued bonds, some of which were another, and the last the running of a tramway purchased by a bank in that city. The bank sold and railroad across the land; and, in the cases in some of these bonds to Otis, and received pay16 and 17 Beavan, the bills were filed after recov- ment. Afterwards, it was decided that the bonds. ery at law. To the same effect is Somersetshire were invalid, the city having no auti rity to isCoal Canal Co. v. Harcourt, 2 De G. & J. 608. “A sue them. Whereupon, Otis sued the bank for the party,” says Lord Cottenham, “ may so encourage

consideration paid by him for the bonds purchased that which he complains of as a nuisance, as not as aforesaid. The court held: (1) that, as the only to preclude himself from complaining of it bank gave no warranty, it can not be charged with in equity, but to give the adverse party a right to a liability it did not assume; (2) that the vendorthe interposition of a court of equity in the event of such securities is liable ex delicto for bad faith, of his complaining of the nuisance at law." and ex contractu there is an implied warranty on Williams v. Earl of Jersey, Cr. & Ph. 97.

his part that they belonged to him, and are not The American authorities are in accord, so that forgeries. Where there is no express stipulation, the editors of the American Leading Cases feel there is no liability beyond this. themselves justified in thus condensing the result: Glass v. Reed, 2 Dana (Ky.), 168, was a case "A writing is indispensably requisite under the where the plaintiff recovered a judgment, and sold provisions of the statute of frauds, whenever an and assigned it, the purchaser giving his note for estate or interest in land is to be affected, unless the the price agreed on. Afterwards, the defendant circumstances are such that re refusal to execute the in the case had the judgment reversed. agreement would operate as a fraud. 2 Amer. Lead. chaser attempted to resist payment of his note, Cas. 558. And the American cases have an- because of the reversal of the judgment; but nounced two conclusions in the matter of licenses, the court held there was no implied warranty that. touching realty, which commend themselves to our the judgment was irreversible. sense of morality and justice. The first is that The same principle has been applied in salesexpressed by Judge Gibson in Swartz v. Swartz, 4 of patents for inventions. The rule there is, Barr, 358: “When the revocation of a license that a bare assignmeut of territory implies only would operate as a fraud, a chancellor will turn that the assignor has a patent in due form, issued the licensor into a trustee ex maleficio for the by the proper officers of the government, not that. licensee, on principles analogous to those which the patent is a valid one. Curtis on Patents, sec. apply when the owner of land stands by and 184; Benj. on Sales, sec. 632; Cansler v. Eaton, allows another person to make improvements on 2 Jones Eq. (N. C.) 499. it, under the belief that he will be allowed to reap In cases where the note of a third party is ex

The pur

changed for other property, there is no implied warranty that the maker of the note is solvent. Burges v. Chapin, 5 R. I. 225 and 230. The same rule applies in sales of stock in a corporation. Beeker v. Hasting, 15 Mich. 47; Renton v. Marryatt, 21 N. J. Eq. 123.

We take it for granted that these cases are decided upon the principle in the law of sales, that, generally, the law implies no warranty by the seller of the quality or character of the thing sold. The application of this principle, however, to franchises, like patents, and to municipal bonds, as in Otis v. Cullom, may be said to be new to the profession

W. C. Jr.


October Term, 1877. FIRE INSURANCE-LOSS CAUSED BY PETROLEUM, CONDITION IN POLICY.-Action upon two policies of insurance against fire, issued by the defendants to the plaintiffs below, an express company, and covering goods, wares, and merchandise in their care for transportation, while on board cars, or other conveyances, including water and stage routes, embracing the entire routes of the company designated on a map specified. The policies, though differing in the sums insured, were alike in all other particulars, and contained the following clause: “It is a further condition of this insurance, that no loss is to be paid in case of collision, except fire ensue, and then only for the loss and damage by fire. And that no loss is to be paid arising from petroleum or other explosive oils." By a collision between a disabled train containing petroleum and an express train, upon which the express company bad goods, the petroleum was ignited and burned, and with it the goods. The petroleum did not belong to the company, and was not under its control. Held, that the loss of the goods was caused by the petroleum, and the insurance company was, under the clause in the policy, exempted from liability therefor. Imperial Fire Ins. Co. v. Fargo. In error to the Circuit Court of the United States for the Southern District of New York. Opinion by Mr. Justice STRONG.-Judgment reversed.

CORPORATIONS - EVIDENCE OF OWNERSHIP OF STOCK-EVIDENCE-RECORD OF BANKRUPT COURT.Where the name of an individual appears in the stock. book of a corporation as stockholder, the prima facie presumption is, that he is the owner of the stock. In a case where there is nothing to rebut the presumption, and in an action against him as stockholder, the burden of proving that he is not such is cast upon the defendant. Hoagland v. Bell, 36 Barb. 56; Turnpike Road v. Van Ness, 2 Cranch, C. C. 451; Mudgett v. Morrell, 83 Cal. 29; Coffin v. Collins, 17 Me. 442: Merrill v. Walker, 24 Id. 237; Plank Road v. Rice, 7 Barb. 162. The receipt of dividends is conclusive evidence of ownership. Records of a bankrupt court in the Northern District of Illinois, authenticated in conformity with the provisions of the bankrupt act, held admissible in an action in the United States District Court in Maryland, by the assignee of a bankrupt corporation, against a stockholder, for contribution to pay the debts of the company. It is not necessary that the record of a judgment should be authenticated as provided by the act of Congress passed in pursuance of article 4, section 1, of the Ferieral constitution, to render it admissible in the courts of the United States; and the District Court of the United States, even out of the state composing the district, is to be regarded as a domestic and not a foreign court, and the records of the court may be proved

by the certificate of the clerk, with the seal of the court, without the certificate of the judge. Adams v. Way, 33 Conn. 430; Michener v. Payson, 13 N. B. R. 50; Mason v. Lawrason, 1 Cranch, C. C. 190. Turnbull o. Payson, Assignee. In error to the Circuit Court of the United States for the District of Maryland. Opinion by Mr. Justice CLIFFORD.-Decree affirmed.

CONSTITUTIONALITY OF STATUTE PRESCRIBING MODE OF SERVICE OF PROCESS UPON A CORPORATION.-—"The single question presented by this record is, whether a statute which prescribes a mode of service of judicial process upon the Cairo and Fulton Railroad Company different from that provided for in its charter, is void because it impairs the obligation of a contract. The regulation of the forms of administering justice by the courts is an incident of sovereignty. The surrender of this power is never to be presumed. Unless, therefore, it clearly appears to have been the intention of the legislature to limit its power of bringing this corporation before its judicial tribunals to the particular mode mentioned in the charter, the subsequent legislation upon that subject was not invalid. The provision of the charter relied upon is in these words: “Process on said company shall be served on the president by leaving a copy to bis address, at the principal office of the corporation, in the hands of any of its officers. The said corporation shall have power to establish a principal office at such place as they may see fit, and the same to change at pleasure.' As against the government, the word 'shall,' when used in statutes, is to be construed as may,' unless a contrary intention is manifest. Here no such intention appears. The largest latitude is given the company in respect to the location of its principal office, and it can hardly be supposed that the legislature meant to deprive itself of the power of providing another mode of service if that specified was found to be inconvenient or unwise. The provision is one which evidently belongs to remedies against the corporation and not to the grant of rights. As to remedies, it has always been held that the legislative power of change may be exercised when it does not affect injuriously rights which have been secured.Sturgis v. Crowninshield, 4 Wheat. 200.Cairo and Fulton Railroad v. Hecht, et al. In error to the Supreme Court of Arkansas. Opinion by Mr. Chief Justice WAITE. Judgment affirmed.

PROMISSORY NOTE INDORSEMENT OF BY STRANGER BEFORE DELIVERY.-1. When a promissory note, made payable to a particular person or order, is first indorsed by a third person, 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. (a) If he puts 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. Schneider v. Scbiffman, 20 Mo. 571; Irish v. Cutler, 31 Me. 537. (b) But 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 consideration for the promise, unless it be shown tbat he was connected with the inception of the note. (c) 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 clearly be entitled to the privileges which belong to such an indorser. 2. The presumption, where such an indorsement is made in blank, is, that the party is liable as maker or guarantor. 3. Where the party is held as a promisor or a second indorser, it is not necessary to allege or prove any other than the original consideration, but if it is attempted to hold him as guarantor, a distinct consideration must appear. Good v. Martin. In error to the Supreme Court of the Territory of Colorado. Opinion by Mr. Justice CLIFFORD. Judgment affirmed.

LIFE INSURANCE – CONDITION IN POLICY SUICIDE-INSANITY—"JUST CLAIM."-1. By a clause of a policy of life insurance, which was conditioned to be void if the one whose life was insured should die by his own hand, it was provided that, before demanding payment in case of death, due and satisfactory proof should be made to the company of death and of the just claim of the assured. Held, that the “just claim" of the assured had reference to the title or claim to the policy, and not to the Justness of the cause of action thereon, and proof that death had occurred by suicide did not render the proof unsatisfactory. The following instruction, as to the degree of insanity, which will excuse a suicide so as to make the company liable, held correct (following Life Ins. Co. v. Terry, 15 Wall. 580). " It is not every kind or degree of insan. ity which will so far excuse the party taking his own life as to make the company insuring liable; to do this, the act of self-destruction must have been the consequence of insanity, and the mind of the deceased must have been so far deranged as to have made him incapable of using a rational judgment in regard to the act which he was committing. If he was impelled to the act by an insane impulse, which the reason that was left him did not enable him to resist, or if his reasoning powers were so far overthrown by his mental condition that he could not exercise his reasoning faculties on the act which he was about to do, the company is liable. On the other hand, there is no presumption of law, prima facie or otherwise, that selfdestruction arises from insanity; and you will remember a great many jurors were excused from the panel because they thonght the law was otherwise; there. fore you will bear in mind that there is no presumption, prima facie or otherwise, that self-destruction arises from insanity; and if you believe from the evidence that the deceased, although excited, or angry, or disturbed in mind, formed a determination to take his own life, because in the exercise of his usual reasoning faculties he preferred death to life, then the company is not liable, because he died by his own hand, within the meaning of the policy. If the insured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches and there can be no recovery; that is, he did die by his own act. If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, and when his reasoning faculties are so far impaired that he shall not be able to understand the moral character or the general nature, consequence, and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse which he has not the power to resist, such death is not in the contemplation of the parties to the contract, and the insurer is liable.” 3. If there was any evidence tending to prove that the deceased was insane when he took the poison which caused his death, the judge was not bound to, and indeed could not properly take the evidence from the jury. The weight of the evidence is for them, and not for the judge, to pass upon. The judge may express his opinion on the subject, and in cases where the jury are likely to be influenced by their prejudices, it is well for him to do so; but it is

entirely in his discretion. Drakely v. Gregg, 8 Wall. 242; Hickman v. Jones, 9 Ib. 197; Barney v. Schneider, Ib. 248; Brown v. Lozalere, 44 Mo. 383; Roustong v. Railroad Co., 45 Ib. 236; McFarland v. Bellows, 49 Ib. 311; Consequa's Case, Peters' C. C. Rep. 225; McLanahan v. Ins. Co., 1 Pet. 170; Tracy v. Swartwout, 10 Pet. 80; Gaines v. Dunn, 14 Pet. 322; Mitchell v. Harmony, 13 How. 131; 9 Pet. 641; 2 Pet. 137. Charter Oak Life Ins. Co. v. Rodel. In error to the Circuit Court of the United States for the Eastern District of Missouri. Opinion by Mr. Justice BRADLEY. Judgmeut affirmed.

COMMON CARRIERS – DELIVERY TO CONNECTING CARRIER.--There is a complete delivery to a connecting carrier when the goods are deposited within the control of the carrier. The facts in this case were as follows: The G, railroad company, under a contract, occupied for the unloading of goods brought by it to D. a section of a depot owned by the M. railroad company, a connecting carrier. The goods were handled by the employees of the M. railroad company, clerks of the G. company merely keeping tally. When goods were designed for delivery to the M. company, they were placed in a specified part of the section, a transcript of their description was taken by the M. company's clerk from the way-bills of the G. company, and they were thereafter cared for by the M. company. Held, to constitute delivery to the M. company, and the G. company were not thereafter liable for their loss. If the liability of the succeeding carrier had attached, the liability of the defendant was diseharged. Ransom v. Holland, 59 N. Y. R. 611; O'Neil v. N. Y. Central, 60 Ib. 138. The question, therefore, is, had the duty of the succeeding carrier commenced when the goods were burned? The liability of a carrier commences when the goods are delivered to him or his authorized agent for transportation and are accepted. Rogers v. Wheeler, 52 N. Y. 262; Grosvenor v. N. Y. Central, 59 Ib. 34. If a common carrier agrees that property intended for transportation by him may be deposited at a particular place without express notice to him, such deposit amounts to notice and is a delivery. Merriam v. Hartford R. R. Co., 24 Conn. 354; Converse v. N. & N. Y. Tr. Co., 33 Ib. 166. The liability of the carrier is fixed by accepting the property to be transported, and the acceptance is complete whenever property thus comes into his possession with his assent. Illinois R, R. Co. v. Smyser, 38 III. 354. If the deposit of the goods is a mere accessory to the carriage, that is, if they are deposited for the purpose of beiug carried, without further orders, the responsibility of the carrier begins from the time they are received, but when they are subjeeted to further order of the owner, the case is otherwise. Ladere v. Griffith, 25 N. Y. 364; Blossom v. Griffin, 13 Ib. 569. Wade v. Wheeler, 47 Ib. 658; Michigan R. R. v. Schurlz, 7 Mich. 615. The same proposition is stated in a different form when it is said that the liability of a carrier is discharged by a delivery of the goods. If he is an intermediate carrier, this duty is performed by a delivery to the succeeding carrier for further transportation, and acceptance by him. Merriam v. Hartford R. R. Co. and Converse v. N. & N. Y. Tr. Co., supra, are in point. In the latter case a railroad company and a steamboat company had a covered wharf in common, at their common terminus, used as a depot and a wharf, and it was the established usage for the steamboat company to land goods for the railroad, on the arrival of its boats in the night, upon a particular place in the depot, whence they were taken by the railroad company, at its convenience, for further transportation, both companies having equal possession of the depot. There was no evidence of an actual agreement that the goods deposited were in the possession of the railroad company, and the goods in question had not been in the manual possession of the railroad company when

they were destroyed by fire on the Sunday afternoon pany “from all claims, demands and liability of every
following their deposit on the previous night. It was kind whatsoever, for or on account of or connected
held that there was a tacit understanding that the with any damage or injury to or loss of said stock, or
steamboat company should deposit their freight at that any portion thereof, from whatsoever cause arising."
particular spot, and that the railroad should take it Held, that the contract did not release the company
thence at their convenience. The delivery to the suc- from liability for loss resulting from the negligence of
ceeding carrier was held to be complete, and a recove its servants. 2. A carrier of animals is excused from
ery against the first carrier for the loss of the goods liability for loss caused by the inherent tendencies or
was reversed. In Merriam v. Hartford, it was held qualities of the animals, but beyond this the common-
that, if a common carrier agree that property intended law liabilities exist against him the same as against the
for transportation by him may be deposited in a partic- carrier of any other kind of property.
ular place without express notice to him, such deposit
alone is a sufficient delivery; and that such an agree-

ment may be shown by a constant practice and usage
to receive property without special notice. Pratt v. A Digest of the Law of Trade-Marks, as Presented in
Grand Trunk R. R. In error to the Circuit Court of

the Reported Adjudications of the Courts of the the United States for the Eastern District of Michi

United States, Great Britain, Ireland, Canada and

France, from the earliest Period to the Present Time, gan. Opinion by Mr. Justice HUNT. Judgment

etc. By CHARLES E. CODDINGTON, Counselor at affirmed.

Law. New York: Ward & Peloubet. 1878. NOTES OF RECENT DECISIONS.

The law relating to trade-marks is decidedly modern,

and the decisions of the courts few in number. PURCHASE OF NOTES BY NATIONAL BANKS.–First

Although the first reported case arose near the National Bank of Rochester v. Pierson. Supreme

middle of the sixteenth century, for over a hundred Court of Minnesota, 16 Alb. L. J. 319. Opinion by

and fifty years, only six cases are to be found reported. CURNELL, J. The purchase of a promissory note by a

After the year 1805, the number of decisions reported national bank, for purposes of speculation, is ultra

during each decade, in Great Britain and the United vires, and the bank acquires no title to and cannot re

States, is as follows: From 1805 to 1815, inclusive, 3; cover on a note so purchased. Farmers and Mech.

1815 to 1825, 5; 1825 to 1835, 6; 1835 to 1815, 13; 1845 to Bank v. Baldwin, 4 Cent. L. J. 119, followed.

1855, 46; 1855 to 1865, 104; 1863 to 1875, 168. From this, MUNICIPAL CORPORATIONS-No RECOVERY CAN BE

it will be seen that, although the first trade-mark case HAD BY A CONTRACTOR ON A QUANTUM MERUIT.

was decided nearly three hnndred years ago, nineAddis v. City of Pittsburg. Supreme Court of Penn

tenths of the decisions upon this topic have been made sylvania, 4 W. N. 529. Opinion by SHARSWOOD, J.

within the last thirty years, and more than half of them Where the law requires that all municipal work of a

since the year 1865. Up to the date of the publication certain character shall be performed under contract í ofthis volume, there have been reported 170 cases delet to the lowest and best bidder after due advertise

cided in the Courts of Great Britain, Ireland and Canment, no recovery can be had for work done in any ada, 178 in the Courts of the United States, and about other manner; and neither the municipality nor its

an equal number in the French courts. subordinate officers can make a binding contract for

The ground on which the courts protect trade-marks such work except in compliance with the requirements

is, that they will not permit a party to sell his own goods of the law.

as the goods of another. Instead, it is now said, of bePROMISSORY NOTES-AUTHORITY OF PARTNER TO

ing founded upon the theory of protection to the BIND THE FIRM FOR AN INDIVIDUAL DEBT.-Riegel

owner, it is supported to prevent frauds upon the pubv. Irvin. Supreme Court of Pennsylvania, 4 W. N.

lic. If the use of any words, numerals or symbols is 537. PER CURIAM. A. B. C. & D., being in partner- adopted for the purpose of defrauding the public, the ship under the firm name of “A. B. & Co.,” became courts will interfere to protect the public from such indebted to R. Subsequently I. purchased the interest frauds, even though the person asking relief may not of B. & C., and the firm continued under the name of

have the exclusive right to the use of such words or “A. I. & D.” A. paid the indebtedness to R. with a symbols. This is broadly the ground on which courts note drawn to the order of the old firm, adding in his take jurisdiction in these cases. To this rule there are own handwriting the endorsements of both firms. In the limitations laid down in Delaware & Hudson Canal an action by R. against A. I. & D., in which judgment Co. v. Clerk, 13 Wall. 311, where it is said that no one by default was obtained against A. and D, held, in can claim protection for the exclusive use of a tradethe absence of evidence of I.'s assent to the second in- mark, which would practically give him a monopoly in dorsement, that R. could not recover against bim. the sale of any goods, other than those produced or EMINENT DOMAIN - MEASURE OF DAMAGES FOR

made by himself. Nor can a generic name, or a name LAND TAKEN-ADVANTAGES ACCRUING TO ADJOIN

merely descriptive of an article of trade, or of its qualiING BUT SEPARATE TRACT BELONGING TO THE SAME ties, ingredients or characteristics, be employed as a OWNER, NOT AN ELEMENT OF COMPUTATION.-Har. trade-mark, and the exclusive use of it be entitled to risburg & Potomac Railroad v. Moore. Supreme legal protection. Court of Pennsylvania, 4 W. N. 532. PER CURIAM.- A casual examination of the cases contained in this In the computation of damages for land taken by a digest would show a conflict apparently unintelligible. railroad company, the law has regard only to the tract The reason for this, is the ground stated in the previous of land through which the railroad is located, con- paragraph, and the fact that what is proper for the sidered as a whole, and not to the person of the owner. court to order depends in each case upon its circum. Advantages accruing to an adjoining but separate stances. This, and this only, explains why the court, tract, owned by the same person, but not cut by the in Newman v. Alvord, 51 N. Y. 189, extended its prorailroad, can not be taken into consideration in assess- tection to the geographical name " Akron," applied to ing damages for the property actually taken.

cement, while in Iron Co. v. Uhler, 75 Penn. St. 467, it LIABILITY OF CARRIERS OF ANIMALS.Mynard v. refused its protection to the geographical name S. B. & N. Y. R. R. New York Court of Appeals, 16 “Glendon," applied to iron; why it protected “ Wor. Alb. L. J. 471. Opinion by CHURCH, C. J. 1. Plaintiff cestershire" appiied to sauce, in Rea v. Wolf, 15 Abb. shipped animals by railroad under a contract whereby Pr. 1, and “Glenfield,” as applied to starch, in he agreed to release and discharge the railroad com- Wotherspoon v. Currie, 27 L. T. (N. S.) 393, while it

[ocr errors][merged small][ocr errors][ocr errors]


refused to protect “ Lackawanna,” as applied to coal, duties imposed by the act," and such bond is “for the in Delaware & Hudson Co. v. Clark, 13 Wall. 31; why use of all persons aggrieved by the acts or neglect of it protected the word “St. James," when applied to such inspector.” The petition averred that the inspeocigarettes, in Kinney v. Basch, and would not protect tor in default and breach of tbe conditions of his offi. the word “Durham,” when applied to tobacco, in cial bond, branded 100 empty cas approved," Blackwell v. Wright. And this, also, makes a digest that the casks belonged to Cobb & Co., who afterwards of the cases on this subject of great value, perhaps of

filled them with oil below test; that the inspector remore value to the practitioner than a treatise.

fused to inspect the same; that Cobb & Co. sold one of The volume contains over 500 pages, with a table of

these casks to O'Connell, a grocer, who sold a gallon of cases and a good index. The digest of French decis- the oil to the relator's family, and that a lamp filled ions, has been prepared by Francis Forbes, Esq., of the therewith, exploded, causing the death of relator's New York bar. An appendix contains the United

wife, etc. To this petition a demurrer was sustained, States Statutes; the treaties of the United States con

we think, improperly. The petition states a good cause cerning trade-marks, and the rules and forms of the

of action against the inspector and the sureties on his United States patent office for their registration. The

official bond, which is not affected by the fact that the recent treaty between Great Britain and this country

manufacturers, Cobb & Co., were also liable under

sec. 4 of the same chapter, and the judgment is reversed is, however, not given, having been signed since this

ana the cause remanded. Opinion by SHERWOOD, C. volume went to press. Its provisions have been re

J.- The County Court of St. Louis County to the use ferred to in this journal, and will be found in 6 Cent.

of Jenks v. Fassett, et al. L. J. 20. The only criticism which we can make on the author's work is, that in several instances we find

ABSTRACT OF DECISIONS OF SUPREME cases digested and referred to us as “not yet reported," wbich are to be found in previous volumes of this and

COURT OF INDIANA. other legal periodicals.

November Term, 1877.

Hon. HORACE P. BIDDLE, Chief Justice.


WILLIAM E. NIBLACK, | Associate Justices. October Term, 1877.

HON. T. A. SHERWOOD, Chief Justice.


Associate Justices.

by confession entered without the knowledge or conJOHN W. HENRY,

sent of the judgment-creditor, is invalid for all purALTHOUGH THERE BENO APPEARANCE for a defend- poses, either as a lien, an estoppel, or a merger of the ant charged with crime, in this court, upon appeal or

demand, unless ratified by such creditor. But it he writ of error, the Supreme Court will examine the re- afterwards accepts and ratifies it, it then becomes cord in the cause. Opinion by SHERWOOD, C. J.-State valid and attended with all the results incident to 0. Smith.

other judgments. Opinion by BIDDLE, J.-Haggerty INDICTMENT_WRIT OF ERROR.-In criminal pros

et al. v. Juday. ecutions, the state is not entitled to a writ of error in DURESS-USURIOUS INTEREST-RECOUPMENT.-1. any case, and is only entitled to appeal in the manner A certain degree of duress may excuse what would and subject to the restrictions imposed by the statute. otherwise be a criminal act; a less degree may be cause The State v. Newkirk, 149 Mo. 472, and The State v. for avoiding a contract. But where a creditor gave to Peck. 51 Mo. 111, are expressly overruled. Opinion by his debtor, laboring under pecuniary embarrassment, SHERWOOD, C. J.-State v. Copeland.

the alternative of being sued in a legal mode for a TownshIP ORGANIZATION – ROAD LAW. – The debt, or giving his notes and mortgage for it, and the power of a road-overseer in the matter of taxation for debtor so gave his notes and mortgage, there was road purposes, is limited by law, and by the amount of neither duress nor fraud. 2. Where ten per cent. intax assessed by the townsbip board of directors. The terest is charged for the use of money, there being no overseer has no power to incur debts for the township, express contract, the excess over six per cent. may be or collect any additional amount either in work or recouped under the statute. Opinion by PERKINS, J. money, beyond the amount so limited. Opinion by -Snyder et al. v. Braden. SHERWOOD, C. J.-Ewell v. Virgil Township.

WILL-DESCENT.-Palmer died in April, 1875, leayDOWER - PARTIES - PRACTICE.- Where a widow ing a will which devised to Mary Prather, his grandbrought suit for assignment and admeasurement of child, certain real estate. The devisee, Mary, died two dower against a purchaser of part of the land, who months prior to the death of said Palmer, leaving a acquired it from the husband and against her children husband and son surviving her. The husband claimed as to the other portion in the same suit, it is too late, one-third of the property, under sec. 13 of the statute after verdict and judgment, on a motion in arrest, to of wills, and sec. 22 of the statute of descent. Held, raise the objection that the petitioner states two distinct the real estate never vested in Mary, but remained causes of action, one of which is against the pur

Palmer's until bis death, when, by virtue of the will, chaser, and the other against the heirs. 2 Wag. Stat.

it passed to the descendants of Mary Prather. As the 1015, $ 1012; Daily v. Huston, 58 Mo. 361; Pomeroy v. title to the property never vested in Mary Prather, her Benton, 57 Mo. 531; Pac. R. R. Co. v. Watson, 61 Mo. husband could not take any part of it as her heir or 57. Nor does the fact that the widow married again husband, and as he was not a descendant from her, he before judgment entered, and that the same was entered could take no part under the will. Opinion by PERin her name without joining the husband, affect the KINS, J.-Prather v. Prather. rights of defendant, or necessitate a reversal of the USURIOUS INTEREST-RECOUPMENT.-The act of judgment. W. S., p. 1034, § 52; W. S., p. 1067, § 33. March 9th, 1861, repealed by implication so much of the Opinion by SHERWOOD, C. J.-Mead v. Brown.

act of March 7th, 1861, as prohibited the recoupment ACTION ON OFFICIAL BOND OF COAL OIL INSPECTOR of usurious interest; but the prohibition, in the latter FOR DAMAGES OCCASIONED BY EXPLOSION OF COAL act, of a direct action for the recovery back of usuriOIL LAMP.—The statute requires the inspector's bond ous interest voluntarily paid, has not been repealed, to be "conditioned for the faithful performance of the and is still a part of the law. And where an action

« PreviousContinue »