ant had so used the water, and not otherwise, is defective in that it does not ex-
pressly deny, nor does it directly confess and avoid the facts stated in the declara-
tion. Ib.

6. The owner of land through which a stream flows is entitled to the use of the water in
its natural state; and any one who pollutes it, so as to render it unfit for such use, is
liable in an action for damages, unless he has acquired by grant or prescription an ad-
verse right against the owner of the land. And where a stream is polluted by one
who has not acquired a right so to do, by long enjoyment or grant, an action will lie
against him by the owner of the land through which the stream flows, although he may
not have suffered any actual damage. Ib.

7. Where the owner of a farm through which a stream flows brings an action to recover
damages for polluting the stream, he is entitled to recover such damages as naturally
or necessarily resulted from the wrongful acts of the defendant; the loss of an oppor-
tunity by the plaintiff to rent his grist-mill, the diminution in the rental value of his
farm, and the inconvenience he may have been put to in the use of the same, resulting
directly from the conduct of the defendant, are proper elements for the consideration
of the jury in estimating the damages. Ib.

8. A count for entering and breaking the plaintiff's close may be properly joined with
counts for polluting a stream of water, to the use of which in its natural state he is
entitled. Ib.

STATUTE OF FRAUDS.

1. An averment that the defendant, in consideration that the plaintiff, to whom a third
person was indebted, would forbear to collect his debt, promised to pay it, is to be
taken as referring to forbearance to collect of the original debtor; it therefore describes
a collateral undertaking, upon which no action can be sustained without proof of a
written note or memorandum of the agreement. Lang v. Henry, 204.

2. It is as much a violation of the statute of frauds to prove by parol testimony an es-
sential part as the whole of an agreement, of which the statute requires a note or
memorandum in writing. Ib.

3. The rule of law which authorizes the maintenance of an action upon a verbal promise
to pay the debt of another, made upon a new and independent consideration, moving
between the plaintiff and the defendant, for the purpose of conferring a benefit not
upon the original debtor, but upon the promisor, considered, and held inapplicable to
the existing facts. Ib.

4. A promise to pay the workmen in a shop, made as a part of the consideration for the
purchase of the stock in the shop from the original debtor, which does not name the
workmen, or mention the sum due to each, or the gross sum due to all of them, though
not invalid because the consideration moves wholly from the original debtor, if subse-
quently assented to by the workmen, is insufficient to entitle them to recover the re-
spective sums due them. Ib.

TAXATION.

1. If a railroad corporation, situated in another state, pays a specific tax upon all its
capital invested or expended, whether represented by capital stock or indebtedness
of the corporation, and such taxation is declared to be in lieu of all state, county,
township, or other taxes in that state, and it appears that such specifix tax was in-
tended to be a fair equivalent for the taxes that would otherwise be laid on such
property by the ordinary means of taxation, such property should not again be taxed
in this state to the owners of shares of the capital stock of such corporation. Kimball
v. Milford, 504.

2. Taxation is not license. Youngblood v. Sexton, 538.

3. Act 228 of 1875, of Michigan for the taxation of the liquor traffic, is not unconstitu-
tional. Ib.

See CONSTITUTIONAL LAW, 4, 5, 7, 8, 9.

TRADE-MARK.

1. Complainants used to distinguish jars the designations "Mason's Patent, Nov. 30th,
1858,' ""Mason's Improved," "The Mason Jar of 1858." It appeared that the jars
had been protected by a patent that had been adjudged to be invalid. Held, that
the designations had a tendency to mislead the public, and could not, therefore, be
protected as trade-marks. In respect of the designation "The Mason Jar of 1872,"

the objection held not to be applicable. Consolidated Fruit Jar Co. v. Dorflinger,

511.

2. Every man has the absolute right to use his own name in his own business. The manner of using it may be enjoined in a case where there is a fraudulent intent. Meneely v. Meneely, 482.

UNITED STATES COURTS.

In passing upon questions of general commercial law, the federal courts are not bound by the decisions of the courts of the state where the contract in question was made, or is sought to be enforced. Jerrett v. Hone, 97.

USURY.

See NATIONAL BANK, 5, 6, 7.

VOLUNTARY CONVEYANCE.

1. As a general rule a voluntary conveyance, made by a grantor in easy circumstances and in no pecuniary strait, to his wife or children, cannot be impeached because voluntary, at the instance of creditors who became such long after the execution of the conveyance. Barker v. Barker's Assignee, 386.

2. To impeach a conveyance made under such circumstances it must be shown to have been fraudulent, or made with a view to protect the property conveyed from future debts. Ib.

3. A deed not at first fraudulent may become so by being concealed from the public, so that the grantor gets credit by reason of his supposed ownership of the property conveyed.

Ib.

4. The Code of Louisiana gives no effect to an unregistered act of alienation as against bonâ fide purchasers or creditors. Ib.

5. But a general creditor of the grantor cannot proceed to set aside a conveyance either really or constructively fraudulent unless he has a lien on the property conveyed, or has reduced his claim to judgment. Ib.

6. But this rule does not apply to an assignee in bankruptcy. The adjudication of bankruptcy arrests the proceedings of creditors to obtain judgments. The assignee may therefore proceed to impeach a deed of the bankrupt as fraudulent, although the creditors have not reduced their claims to judgment, and although they have no specific lien upon the property conveyed. Ib.

WILL.

1. A disposing mind and memory exist, if at the time of making a will the testator has a full and intelligent knowledge and understanding of the act he is engaged in, of the property he possesses; an intelligent perception of the disposition he desires to make, and the persons he wishes to be his beneficiaries. Tawney v. Long, 341.

2. Although the general capacity of a testator may be unimpeached, if the will is the direct result of partial insanity or monomania without which the will would have been different, it cannot be sustained. Ib.

3. Importunate persuasion from which a delicate mind would shrink will not invalidate a devise. Ib.

4. Undue influence, to affect a will, must be such as to subjugate the mind of the testator to the will of the person operating upon it. Ib.

5. To establish undue influence there must be proof of fraud, threats, or misrepresentations, undue flattery, or physical or moral coercion, so as to destroy the testator's free agency operating as a present constraint at the making of the will. Ib.

6. Neither general bad treatment nor general kindness is evidence of undue influence, unless shown to be part of a crafty arrangement to procure the will. Ib.

THE

AMERICAN LAW TIMES.

PUBLISHED IN CONNECTION WITH THE

AMERICAN LAW TIMES REPORTS.

EDITED BY

ROWLAND COX.

NEW SERIES, VOLUME II.

NEW YORK:
PUBLISHED BY HURD AND HOUGHTON.

Cambridge: The Riverside Press.

1875.

RIVERSIDE, CAMBRIDGE:

PRINTED BY H. O. HOUGHTON AND COMPANY.

CONTENTS.

......

PAGE

62

30

AN ACT to determine the jurisdiction of Circuit Courts of the United States, and to regulate the removal of causes from state courts, and for other purposes... BANKRUPTCY. Fraudulent conduct of claimant. Advance by father to son'... A state court has no power to restrain a party from taking the benefit of the bankrupt act.111 COMMON CARRIER. Negligence of. Injury to passenger by being struck by pillar of bridge while his arm is resting on sill of car window, or when his arm is thrown out of window by lurching of car when in motion...

110

126

.... 173

DIGEST OF CASES published in contemporaneous legal periodicals. 1, 17, 33, 49, 65, 81, 97, 113, 129, 145, 161, 177

46

79

EQUITY PRACTICE IN U. S. COURTS. Construction of Rule 69..
EVIDENCE. Bill of exceptions of former trial.......
MARRIED WOMAN. Contract of for services of attorney in libel for divorce not binding.112
NOTES OF NEW BOOKS......................
........16, 32, 48, 80, 112, 128, 160, 176

15 ..158

PATENT. Effect of assignment under state law upon rights of patentee, &c..
New article of manufacture.....
PERSONAL PROPERTY. Judgment for might be for possession or the value.......... 30
PRACTICE. Writ of error to state court. When it will lie from supreme court of U. S... 46
REMOVAL OF CAUSES. Trustee holding the legal title to real estate as to whom a
cause is not removable......

45

Construction of Act of March 2, 1867..

.141

SLAVE, CONTRACT OF. Emancipation. Ratification..
TRADE-MARK. Infringement. Expert testimony. Marking label "Patented".
"Rising Moon Stove Polish" not an infringement of "Rising Sun Stove Polish
TRANSFER OF NOTE given for patent. Construction of Ohio Statute.....

.124

31

"

31

.143