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penses, the senior mortgagee is entitled to be paid his debt in full, the same as he would be in case of a sale by way of foreclosure of his mortgage. In re Bartenback, 33.
See VOLUNTARY CONVEYANCE, 6.
BILLS AND NOTES. 1. An accommodation acceptor of a bill of exchange transferred before maturity by the
drawers in liquidation of their own preëxisting debt cannot defend an action against himself on the bill by alleging that he was an accommodation acceptor only, and that
the fact was known to the holders of the bill when they took it. Jerrett v. Hone, 97. 2. An indorsee of a negotiable promissory note made for the accommodation of the indorser, taking the note in good faith as collateral security for an antecedent debt, and without other consideration, is entitled to the position of holder of such paper for value, and therefore not affected by the defence of the want of consideration to the maker. Maitland v. Citizens' Nat'l Bank, 261. 3. It is no defence that the note sued on was known to the plaintiff to be an accommoda
tion note between the maker and the payees, provided the plaintiff took the note for
value bonâ fide before it was due. 16. 4. Where the payee of the note received it from the maker, with authority to use it as
collateral security for a specified indebtedness, and the payee exceeds his authority, and transfers it to the indorsee as collateral security for a larger indebtedness, the latter is not to bear the consequence of this excess of authority, unless it be shown that
it was taken with knowledge of the fact, that the payee had so exceeded his authority, 5. But if the fact of such knowledge be established, the indorsee would be affected by it,
and could have no right to recover, except for amounts due on the indebtedness for
which the note was authorized to be pledged. Ib. 6. Where the maker of the note, in an action against him brought by the indorsee, seeks
to avail himself of the defence of such excess of authority, it is for him to prove it. Ib. 7. In such action in order to make the defence effectual, on the ground of the want of
authority in the payee to pledge the note for past discounts, there should be such proof as would justify the conclusion, that the indorsee had actual knowledge of the limited purpose for which the note was made, and consequently of the excess of authority by
the payee in applying it to a different purpose. Ib. 8. The plaintiff' was not bound to make inquiry, and mere negligence however gross,
not amounting to wilful and fraudulent blindness, while it may be evidence of mala
fides, is not the same thing. Ib. 9. In an action against the maker of a promissory note, brought by the indorsee to whom
it was passed as collateral security for the payment of notes discounted by the indorsee for the benefit of the indorser, the measure of the plaintiff's right of recovery is the amount due on the debts embraced by the security. And it is incumbent on the plaintiff to show what debts were intended to be secured by the note, and the amounts remaining due in respect thereof. Ib.
See CONTRACT, 1, 2, 3; EVIDENCE, 11 ; NEGOTIABLE INSTRUMENTS.
CIVIL RIGHTS ACT. The “civil rights act” unconstitutional. Judge Emmons's charge to the Grand Jury, 198.
COMMON CARRIER. 1. Defendant was a railroad company which received certain goods for transportation to
a point beyond its terminus. The bill of lading contained a provision as follows : 4. The E. & C. R. R. Co. will not be liable for loss or damage by fire from any cause whatever.” Held, that the exception was not confined to the defendant's line alone
but covered the entire route. E. 8 C. R. R. Co. v. Androscoggin Mills, 485. 2. An agreement, that in case a common carrier shall fail to deliver goods intrusted to it
to the consignee, a claim for the goods shall be made within a specified time, is liable to no sufficient objection, provided the period is a reasonable one. In the case of an express company ninety days is a proper limitation. So. Express Co. v. Caldwell, 162.
See ADMIRALTY, 1, 2, 3, 4, 5; CONTRACT, 1, 2, 3.
CONSTITUTIONAL LAW. 1. An act of the Legislature of the State of New York, passed in 1871, in relation to
the widening and straightening of Broadway, in the city of New York, authorizing the supreme court of the state to vacate an order made in 1870, confirming the report of commissioners of estimate and assessment respecting the property taken, from which order no appeal was allowable, if error, mistake, irregularity, or illegal acts appeared in the proceedings of the commissioners, or the assessments for benefit or the awards for damage, or either of them, had been unfair and unjust, or inequitable or oppressive as respects the city or any person affected thereby, and to refer the matter back to new commissioners to amend or correct the report, or to make a new assessment, is not unconstitutional as impairing the obligation of contracts, or depriving a person of a vested right without due process of law. Garrison v. Mayor of New
York, 167. 2. In the proceeding to condemn property for public use there is nothing in the nature
of a contract between the owner and the state, or the corporation which the state, in virtue of her right of eminent domain, authorizes to take the property; all that the Constitution of the state or of the United States or justice requires in such cases being that a just compensation shall be made to the owner ; his property can
then be taken without his assent. Ib. 3. The proceeding to ascertain the compensation to be made to the owner of property
taken for public use is in the nature of an inquest on the part of the state and is under her control ; and to secure a just estimate of the compensation to be made, she can vacate or authorize the vacation of any inquest taken by her direction where the proceeding has been irregularly or fraudulently conducted, or in which error has intervened, and order a new inquest, provided such methods of procedure be observed as will secure a fair hearing from the parties interested in the property. Until the property is actually taken and the compensation is made or provided, the power of the
state over the matter is not ended. Ib. 4. A state statute provided, in substance, that a school tax should be levied without re
gard to the race or color of the owner of the property taxed ; that all children, without regard to race or color, should be included in the enumeration for school purposes, the colored children to be enumerated in separate lists, and separate school-houses and teachers to be provided for them. In the event of there not being a sufficient number of colored children in any district to warrant the erection of a school-house and the employment of a teacher for their separate use, it was made the duty of the proper officers to consolidate adjoining districts, or otherwise provide for the education of such children, their full proportion of the school revenue to be expended for their benefit. Held: 1. That the act was not an infraction of the section of the Constitution of the state which provides that the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities which shall not equally belong to all citizens. 2. That it was not an infraction of the section of the Constitution of the state which provides for the establishment of a uniform system of public schools, equally open to all. 3. That it was not in conflict with section 2 of article 4 of the Constitution of the United States which declares that the citizens of one state shall enjoy the privileges of citizens in the several states. 4. That it was not in conflict with the thirteenth or fourteenth amendments of the Constitution of the United States, nor any of the amendments of earlier date ; nor with the act of Congress known as the
“ Civil Rights Bill.” Cory v. Carter, 73. 5. Held, that the thirteenth and fourteenth amendments do not impose limitations
upon the powers of the states to fix, secure, and protect the rights, privileges, and immunities of their citizens as such, of whatever race or color they may be. That the only restrictions which said amendments impose upon the sovereignty of the states are (1) to prevent slavery ; (2) to prevent negroes or mulattoes being deprived of national rights; (3) to compel the states to recognize negroes and mulattoes as their citizens ; (4) to compel the states to give to negroes or mulattoes the same rights
which their white citizens enjoy. Ib. 6. The “natural, essential, and inherent” right of “protecting property," is the right
to do whatever, under the circumstances of each case, is reasonably necessary to be done in defence. The statute (of N. H.) prohibiting the destruction of certain furbearing animals between May 1 and October 15, is not applicable to cases in which such destruction is an exercise of the constitutional right of protecting property. The killing of wild vermin in defence of property may be apparently reasonably necessary in apparent danger not actual. Such a case is not governed by the tests of imminent
danger and of the duty of retreating to the wal), applied in cases of homicidal defence.
Aldrich v. Wright, 49. 7. A legislative act which provides that on the failure of a township treasurer to make
return of a tax warrant issued to him in the time therein provided, the county treas. urer shall issue execution for the collection of the amount of the taxes from the township treasurer and his sureties, is not in violation of the fourth and fifth amendments to the federal Constitution ; those amendments being restrictions only on the power of the federal goverment and not on that of the states. Nor is it a violation of the provision in the state Constitution forbidding unreasonable searches and seizures; the searches and seizures contemplated by that provision being something very different from an open levy upon property under process having the apparent sanction of law. Nor is it a violation of the provision in the state Constitution that no person shall be deprived of life, liberty, or property without due process of law. Weimer v.
Bunbury, 37. 8. Due process of law is not necessarily judicial process. Administrative process, which
has been regarded as necessary in government and sanctioned by long usage, is as much due process of law as any other. And summary process to enforce the payment by a collector and his sureties of the taxes not returned by him, having been in use by express legislation both before and ever since the adoption of the Constitution, must be considered permitted by that instrument and be regarded as due process. But where the statute provides for the issue of such process by the county treasurer, and by law, and he could have no evidence of the collector's default beyond the presumption that the supervisor, who was to make out and deliver the tax warrant to the collector, had performed his duty, it is at least questionable if the process can be sus
tained. Ib. 9. Where the statute required the supervisor to deliver to the collector a tax roll with
warrant attached, authorizing him to collect the same from the persons taxed, and then made the collector subject to summary process on his failure to make return in due season ; it was held, that where the supervisor delivered a tax roll without any warrant attached, the collector was not subject to this process. Held, further, that where the county treasurer's warrant failed to recite the facts which would warrant the issue of such summary process, and the proofs showed one jurisdictional fact did not exist, the process constituted no defence to the officer who executed it by seizure
of property. Ib. See Civil Rights Act; DIVORCE; EVIDENCE, 2 ; INSANITY, 1 ; MUNICIPAL COR
PORATION, 3 et seq.
CONTRACT. 1. The plaintiffs gave to the agent of the defendants, an express company, a promissory
note, telling him they wanted him to send it by express for 'collection upon the makers at H. The agent took the note, saying he would send it. The defendants' line did not extend to H., but their practice was to deliver packages and demands for collection going beyond the terminus of their own route to R. & Co.'s Express at L. Between R. & Co. and the defendants there was no business connection, nor any division of profits or compensation for carriage or collections ; but, with respect to demands for collection received by R. & Co. from the defendants, R. & Co. reported to the general agent of the defendants in Boston and followed his directions. Held, these facts did not, as matter of law, impose any obligation upon the defendants with regard to the collection of the note after its delivery to R. & Co. ; but they were evidence of a contract on the part of the defendants to do with the note according to their custom and usage with respect to business of that description, even though a part of that undertaking was to be carried out at a point beyond their line, and by agents not in
their immmediate employ. Knapp v. U. S. f Canada Express Co. 475. 2. Where the defendants' agents were accustomed to receive notes for collection in the
circumstances above recited ; held, the defendants were estopped to deny that such agents were authorized to make contracts on behalf of the company to transact busi
ness of such character beyond the limits of the defendants' route. '1b. 3. The makers of the note had property sufficient to pay the same when the defendants
received it for collection; but by reason of the defendants' negligence with regard to its collection, the note became worthless upon the failure of the makers of the note.
Held, the damages were the amount of the note and interest. Ib. 4. During the war neither the law of the United States, nor any policy of their govern
ment, was in force in any part of the Confederate States, not in the possession or under the control of the United States. Bier v. Dozier, 229.
5. On the 1st of February, 1865, B., representing himself to be the agent of the Confed
erate States government, to take tobacco into Maryland and exchange it for bacon, applied to D., living near the Potomac River in W. County, to store for him in D.'s barn for the night eighty-four boxes of tobacco. D. being unwilling to do it, B. agreed with him that if he would receive the tobacco in his barn, and should sustain any damage or injury from the forces of the United States in consequence of the tobacco being there deposited, B. would make good all losses he might sustain thereby. Under this agreement the tobacco was deposited in D.'s barn, where it remained until the 17th of March, B. undertaking to pay for any loss D. might sustain thereby. At that time the enemy's gun-boats on the river approaching D.'s house he removed and concealed the tobacco, and his houses and out-buildings and furniture were destroyed by the enemy; his loss amounting to $6,352. Held: (1.) B. being the agent of the Confederate government, which could enforce obedience upon all within its jurisdiction, the contract was valid, and B. is bound to pay D. for the loss which he sustained. (2.) If B. was not the agent of the Confederate government, and was prosecuting a private enterprise, against the laws and policy of that government, D. is not particeps criminis with B., in an equal degree, if at all, and he is entitled to recover. (3.) To make a contract unlawful as being against public policy or law, it must be manifestly and directly so ; and it is not enough that the contract is connected with some violation of the law
however remotely or indirectly. 16. 6. Where a contract to build a railroad provides that the plaintiff shall increase his force
when notified by defendant's engineer, and that in case of his failure to do so for ten days after such notice the defendant may put on a force of its own, or re-let the work and charge the expenses or loss, if any, to the plaintiff, the only damages that can be claimed by the defendant for a failure by the plaintiff in that regard is, the expense of such force put on by defendant, or the loss, if any, incident to the re-letting of the
work. Mc Donald v. S. V. f. St. L. R. R. Co. 29. 7. When a contract by plaintiff to build a railroad provides that estimates of work done
and materials furnished should be made from time to time by defendant's engineer, and that such estimates should be conclusive between the parties, and the report of the referee is silent as to whether his findings in favor of the plaintiff for work done and materials furnished were or were not based upon such estimates, or whether as such estimates were in fact before time, there is no basis for an exception to the report that
such findings were not based upon such estimates. Ib. 8. Where a broker agrees to carry for and on account of a customer, for the period of
twelve months, a certain number of shares of railroad stock, at a specified price per share, he is not bound to retain in his possession during the pendency of the carrying contract the identical stock which he agreed to carry; he may sell the whole or any part thereof; all that the law requires of him is, that during the pendency of the contract he should have on hand, in his possession, or under his control, an equal number of other shares of the same stock, ready for delivery when his customer should pay what he owed on account thereof, or to be sold on his account when he should so direct. Price v. Gover, 153. See Common CARRIER ; EVIDENCE, 9, 10, 11 ; INTEREST, 1..
. COPYRIGHT. 1. A gratuitously prepared for B certain notes to two editions of a book the copyright
of which В owned. The notes were copyrighted by B ; but it was agreed that in any subsequent editions of the book B would make no use of the notes prepared by A and copyrighted as aforesaid. B procured a subsequent edition of the book to be published with notes by C, which were alleged to infringe the notes of A. Upon suit by A, it was ruled that the publication of the edition with notes by C, the same being an infringement as charged, was a violation of A's rights in the premises. Lawrence v.
Dana, 402. 2. Where literary matter is prepared gratuitously for another, and a copyright obtained by the person for whom the service has been performed, such copyright is valid, notwithstanding the absence of a written assignment by the person who prepared the matter. Ib. 3. It is not necessary that in a second or subsequent edition of a book the notice of copy
right prescribed by statute should specify the date of the original copyright, in addi
tion to the date of the subsequent one. Ib. 4. What constitutes the infringement of a copyright in annotations or notes. The rule
of comparison and coincidence of errors and citations expounded. Abridgment defined and distinguished. Ib.
5. Where the editor of a second or subsequent edition of an annotated work makes notes
which may be separated and distinguished from those contained in the original, he is
they cannot be separated, they infringe the original. Ib.
nation and report. The reference should be made even where the infringement has
ence only where the infringement can be readily ascertained. Ib.
by the statute is essential to the acquirement of a copyright, is not changed by the
paying their debts, the interests of the creditors will be so far regarded that no de-
stockholders to enforce their personal liability. Ossipee Man. Co. v. Canney, 514.
called by publication at least fifteen days prior thereto. Only fourteen days' notice
4, General Statutes. Ib.
color of the charter, is an organization under the charter, within the meaning of the
statute of 1846, chapter 321, section 7. Ib.
provisions of chapter 136, section 4, General Statutes (of N. H.), he will be regarded
he subscribed. 16.
under chapter 136, section 4, General Statutes. The stockholder wrote to the treas-
the assessment had been demanded of the corporation. Ib.
in chapter 135, General Statutes (of N. H.), can be enforced against individual
section 2. 16.
a corporation to contract debts or incur liabilities exceeding one half of its capital
such corporation. Ib.
ceeded the limit beyond which it is forbidden, by chapter 137, section 4, to contract