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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 lid, 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. Ib. 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. g. 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. 16. 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. 16.


5. Where the editor of a second or subsequent edition of an annotated work makes notes


be separated and distinguished from those contained in the original, he is
entitled to a copyright for them ; but if they are so connected with the original that

they cannot be separated, they infringe the original. Ib.
6. The proper equity practice in copyright cases is to refer them to a master for exami-

nation and report. The reference should be made even where the infringement has
been established upon the hearing. An injunction should be granted without refer-

ence only where the infringement can be readily ascertained. Ib.
7. The rule laid down in Wheaton v. Peters, that the performance of every act required

by the statute is essential to the acquirement of a copyright, is not changed by the
provisions the Revised Statutes. Under sections 4952 and 4956 an author cannot
obtain an exclusive right to his work unless, before publication, he delivers to the
Librarian of Congress, or deposits in the mail addressed to him, a printed copy of
the title of the work; and, also, within ten days from the publication, delivers to the
Librarian of Congress, or deposits in the mail addressed to him, two copies thereof.
A bill which does not allege the performance of the acts required by the statute is in-
sufficient. Parkinson v. Lasalle, 279.

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1. In an action by an insolvent corporation to collect an assessment for the purpose of

paying their debts, the interests of the creditors will be so far regarded that no de-
fence grounded on defects in the organization of the corporation can be maintained,
unless it could have been successfully set up in answer to a creditor's bill against the

stockholders to enforce their personal liability. Ossipee Man. Co. v. Canney, 514.
2. The plaintiffs' charter provided that the first meeting of the corporators might be

called by publication at least fifteen days prior thereto. Only fourteen days' notice
of the meeting was given. Held, that if neither the grantors of the charter (i. e. the
state) nor the grantees complained of the defect in the preliminary notice, the objec-
tion could not subsequently be raised by a stockholder in a suit by the corporation
against him to recover an assessment made under the provision, chapter 136, section

4, General Statutes. Ib.
3. A de facto organization of a corporation, formed and operated in good faith, under

color of the charter, is an organization under the charter, within the meaning of the

statute of 1846, chapter 321, section 7. Ib.
4. In a suit brought against a stockholder to recover an assessment made under the

provisions of chapter 136, section 4, General Statutes (of N. H.), he will be regarded
as having waived the right to object that the whole number of shares fixed and lim-
ited by the corporation was not subscribed for, if he has paid for the stock for which

he subscribed. 1b.
5. A corporation brought a suit against a stockholder to recover an assessment made

under chapter 136, section 4, General Statutes. The stockholder wrote to the treas-
urer of the corporation as follows : “I suppose you are somewhat anxious to hear
from me, as it is past the time specified for the assessment to be paid. I have the

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and shall have it the first of next month, so thought I would not bor-
row or hire it for so short a time; therefore you will excuse me for being so backward
in paying my proportion." Held, that said letter was competent evidence to go to the
jury to show an admission by the defendant that payment of all the debts named in

the assessment had been demanded of the corporation. Ib.
6. Payment only of the debts of a corporation, in the cases and to the extent specified

in chapter 135, General Statutes (of N. H.), can be enforced against individual
stockholders under chapter 136, section 1. An assessment can be made under chap-
ter 136, section 4, to pay those debts only of which the payment can be enforced by
bill in chancery under section 1, and payment of no other can be demanded under

section 2. 16.
7. The provisions of chapter 135, section 4, General Statutes (of N. H.), which forbid

a corporation to contract debts or incur liabilities exceeding one half of its capital
stock actually paid in and unimpaired, and of its other property and assets, are di-
rectory: debts contracted and liabilities incurred in excess of that amount are bind-
ing upon the corporation. The stockholders may assess themselves to pay such debts
under chapter 136, section 4, if they are individually liable to pay the other debts of

such corporation. Ib.
8. When a creditor of a corporation had no knowledge that the corporation had ex-

ceeded the limit beyond which it is forbidden, by chapter 135, section 4, to contract

money due


debts, and could not by inquiry have ascertained that fact, the doctrine of ultra vires
will not be applied to him. Ib.



1. Under the Act of 31st March, 1860 (of Pa.), the jury, before finding the fact of in-

sanity specially, must be satisfied of it by the evidence. Ortwein v. Commonwealth,

2. A reasonable doubt of the fact of insanity in a criminal case is not a true basis for

the finding of it as a fact, and as a ground of acquittal. Ib.
3. The evidence to establish insanity as a defence in a criminal case must be satisfac-

tory, not merely doubtful. Ib.
4. A person charged with a crime must be judged to be a reasonable being, until a want

of reason positively appeats. Ib.
5. To make a want of reason to appear, the evidence must be satisfactory, not merely

doubtful; nothing less than satisfaction can determine a reasonable mind to believe a

fact contrary to the course of nature. Ib.
6. Insanity, as a defence, must be so great as to have controlled the will and taken away

the freedom of moral action. Ib.
7. When the killing is admitted, and insanity is alleged as an excuse, the defendant

must satisfy the jury that insanity actually existed at the time of the act; a doubt as

to the insanity will not justify the jury in acquitting. Ib.
8. Where a juror had formed his opinion in part from testimony taken before the coro-

ner, as read in the newspapers, and part from rumor, but his opinion was so unfixed
that he could hear and determine the case from evidence given on the trial uninflu-

enced by previous impressions, he was not incompetent. lb.
9. The inquiry as to the juror's incompetency from previous opinion is, whether his

opinion is a prejudgment with such fixedness and strength as would probably influ-
ence and control his judgment, or formed upon the same evidence as will be given on

the trial. Ib.
10. Evidence before a coroner has not the same weight as that given on the trial. Ib.
11. The bringing into this state by the thief of goods stolen in the Dominion of Canada,

or other foreign country, is not larceny in the State of Ohio. Stanley v. The State, 14.
12. D. & H. rent a room jointly of S., of which each has a key. C. rents an adjoining

room, the doors of the two rooms entering upon the same porch near each other.
They frequently interchange visits. On the night of March 11, 1874, D. locks his
door, takes out the key, and starts to church. On the way he meets H., who

says he
is going to his room, and will follow him to the church soon. H. and C. conspire to
steal D.’s goods in the absence of D. on this night, and H. opens the door with his
key, and they enter the room, and take and carry away the trunk of D. with its con-
tents. This is not such a breaking as will constitute burglary in C. Clarke v. The

Commonwealth, 489.
13. The breaking which will constitute burglary may be actual or constructive. For

what will be a constructive breaking, see the opinion of Moncure, P. Ib.
14. The indictment charging not only the breaking and entering, but the stealing of the

trunk and its contents, of a stated value, C., though acquitted of the burglary, may

be found guilty of the larceny. Ib.
15. Under the principles of the common law and the statutes against duelling, it may

well be apprehended that the surgeon of a party to a duel would be regarded in law
as being concerned in, or as aiding and abetting the duel. Cullen v. Commonwealth,

16. A mailed a postal card directed to B, having written upon it certain words which

imputed illicit intercourse to C. and another, but in which no epithet, in the form of a
substantive or adjective, was used. Held, that the offence was within the terms of
section 3893 of the Revised Statutes. U. S. v. Pratt, 238.


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Where land was described in a deed of conveyance as lying north of a specified road,

and was also described by boundary lines, which include the road-bed : Held, that the repugnancy between the two descriptions is not irreconcilable, and that the road-bed is included in the conveyance.

Williams v.

Sparks, 48.

DIVORCE. The St. of 1874, c. 397, § 1, providing that “all divorces, nisi heretofore decreed under

and by authority of "the St. of 1870, c. 404, “ shall be deemed and taken to be, and have the force and effect of, absolute divorces from the bonds of matrimony," and that the justices of this court, upon petition and notice, may authorize the party, against whom such divorce has been granted, to marry again, is unconstitutional. Sparhawk v. Sparhawk, 194.

DOWER. 1. Where a wife joins in a mortgage of her husband's property, her right of dower can

be barred only by a sale of the mortgaged property under a power of sale contained in the mortgage, or a decree of a court of competent jurisdiction, where she can be made a party to the proceedings, and not by a sale in the bankruptcy court free of the

incumbrance. In re Bartenback, 33. 2. Money paid by the assignee by direction of the bankruptcy court, to obtain a release

of dower in mortgaged property in order to a sale of the same free of the incumbrance, for the purpose of avoiding the delay and expense of a foreclosure, must be borne by the parties interested in the proceeds, proportionately to their respective interests. Ib.


See JURISDICTION, 10 et seq.

EVIDENCE. 1. By the 8th section of the Bill of Rights of Virginia a person is not only secured

against giving evidence against himself on his own trial, but he cannot be required on the trial of another, to testify, if his evidence will tend to criminate himself. Cullen

v. The Commonwealth, 349. 2. Even if a person might be required to give evidence on the trial of another which

might tend to criminate himself, if the statute afforded him a complete indemnity, by discharging him from all prosecution for the offence (of which quære ?), the Act of October 7, 1870 (of Va.), does not afford that indemnity; and, therefore, in requiring any person engaged in a duel to testify against another prosecuted for having

fought, &c., such duel, is unconstitutional. 16. 3. The fact that the witness has testified before the coroner, and stated the facts, does

not deprive him of his privilege; and that having been done without being advised of

his privilege, it is not a waiver of it by him. Ib. 4. All persons examined as witnesses must be fully possessed of their understanding;

that is, such understanding as enables them to retain in memory the events of which they have been witnesses, and gives them a knowledge of right and wrong; and, therefore, idiots and lunatics, whilst under the influence of their malady, not possessing

this share of understanding are excluded. Coleman v. Commonwealth, 390. 5. A witness is not excluded by this rule merely because he is a lunatic. That is not

enough per se to exclude him; but he must at the time of his examination be so under the influence of his malady as to be deprived of that “ share of understanding ” which is necessary to enable him to retain in memory the events of which he has been a witness, and gives him a knowledge of right and wrong. If at that time he has this

share of understanding he is competent. Ib. 6. Of the competency of the witness in such case the court is the judge, whilst the

weight of the testimony and the credit to be attached to it is to be left to the

jury. Ib. 7. On a trial for forgery M. was introduced as a witness for the commonwealth, and

gave important testimony against the prisoner. He was examined and cross-examined for two days, and neither the counsel nor the court suspected he was deranged, though they thought he was drinking deeply. After the conviction and sentence of


the prisoner he moved for a new trial, on the ground that M. was deranged when he
gave his evidence; and it was proved that he had been deranged a few days before the
trial, and within a few days after it, and so continued. But the judge who tried the
prisoner overruled the motion, and certified that at the time of M.'s examination he
was a competent and proper witness, and not laboring under any mental disability
whatever. The proofs not showing derangement at the time of his examination as a

witness, he was a competent witness; and the judgment affirmed. Ib.
8. If, in an indictment for a forgery, the document alleged to have been forged is de-

scribed in such manner as would sustain an indictment for stealing it, supposing it to

be the subject of larceny, the indictment is sufficient. Ib.
9. By bond dated July 7, 1863, B. promises to pay to W., three years after date, $2,000

without interest, in funds current in the State of Virginia, being money borrowed.
Held: 1. Parol evidence is admissible to prove the consideration of the bond and the
character of the contract. The evidence showing that it was a contract of hazard,
and that the parties contemplated the possibility, though not the probability, of the
failure of the Confederacy, and intended that the bond should be discharged in the
currency in use when it fell due, W. is entitled to recover the value of $2,000 in the
United States currency then in use in Virginia on the day it fell due, with interest

from that date, and no more. Wrightsman v. Bowyer, 308.
10. It is competent to show by parol evidence that the word “dollars," used in a judg.

ment rendered by a court within the Confederate States, during the time of their de
facto existence and authority, means dollars issued by the government in power at the
time the judgment was rendered, to wit : dollars of the government of the Confeder-

ate States. Rogers v. Tullos, 147.
11. The firm of P. & M. kept an account with a bank in Baltimore and received from it

discounts of drafts or bills to a considerable amount. While the account was still run-
ning, the bank instructed G. its cashier to call upon M., a member of the firm, for
collateral security. G. did so on the 10th of January, 1872, and suggested the giving
of the note of M.'s father as such security. M., the father, upon the request of his
son, gave him his promissory note in favor of the firm for $10,000, which was in-
dorsed by the firm and delivered to the bank. P. & M. failed on the 15th of January,
1872, owing the bank, on account of drafts discounted on and after the 10th of Janu-
ary, $5,681, and on account of drafts discounted prior to said 10th of January, $15,000.
In an action brought by the bank against M., Sen., on the note for $10,000, one of
the questions raised was whether or not this note was given as collateral security for
the payment only of the drafts discounted, on and after the said 10th of January,
1872, or was also intended to cover drafts discounted prior to that day: G., the cashier,
testified that the demand which he made was for collateral security, for all drafts then
held by the bank, as well as for all others that might thereafter be discounted for the
firm. On the other hand, it was testified on the part of the defendant, that security
was only required, and therefore only given for drafts thereafter to be discounted, in-
cluding the drafts discounted on the 10th of January, 1872. The plaintiff then, in
order to corroborate the testimony of G., offered to prove by its president and two of
its directors, that G., a few days after the 11th day of January, 1872, and before the
failure of P. & M., stated to the board of directors, that he had obtained from P. &
M. the defendant's note for $10,000, " which was to be held by the bank as collateral
security for all drafts which it was carrying ; that is, which it had discounted at the
- date of said note, as well as for all drafts which should be discounted by it for said
house subsequently to the date of said note.Held, that this evidence was inadmis-
sible, on the ground that there was no real or substantial similarity in facts and cir-
cumstances between the unsworn and sworn statements of G. Maitland v. Citizens'
Nat. Bank of Baltimore, 261.

See CRIMINAL LAW, 1, 2, 3, 5, 7, 10; RIPARIAN Rights, 7.

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1. The appraisal of a committee setting off a debtor's homestead upon the levy of an ex-

ecution is conclusive upon the question of its value, until invalidated by some proceed-
ing brought for the purpose of vacating or revising the record thereof. It cannot be
called in question upon a subsequent proceeding for partition between

the debtor and
his creditor, to whom the residue of the estate has been assigned. Barney v. Leeds,

2. Whenever the estate of tenants in common is practically incapable of division by as-

signing to each owner thereof his equal portion in severalty, he cannot be compelled,

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