6. Where a note was given for an amount due the payee from the maker on a certain contract, this was a sufficient consideration, although the payee may have owed the maker at the time more than the face of the note, on other contracts. Knox v. Clifford, 184.
II. Rights of the Parties. Sec BILL OF LADING.
7. Where a plaintiff sues on a note as trustee for another, the maker may avail himself of any defence which he might set up against the real owner. Belohradsky v. Kuhn, 248.
8. An Indiana bank drew on a Philadelphia bank in favor of the cashier of a New York bank; the draft was stolen, the name of the cashier (payee) forged as endorser and passed to defendants, October 16th, in payment of goods sold to the holder, they giving to him a check on the Philadelphia bank for the difference, which was drawn, and the draft, endorsed by the defend- ants, was deposited to their credit in the same bank. After learning of the fraud, on November 2d, the bank demanded payment of the draft from de- fendants. Held, that the demand was in time. Chambers et al. v. Union Na- tional Bank, 375.
9. The holder of a draft which is endorsed and passed by him, guaranties the prior endorsements. Id.
10. In an action on a promissory note, evidence is inadmissible to show a parol agreement, made when the note was given, that it should not be nego- tiated by the payee. Knox v. Clifford, 184.
11. One who purchases negotiable paper, before maturity, without notice, in absolute payment of a pre-existing debt, surrendering his previous security, is protected by the law merchant against all equities of the maker as against the payee. Id.
12. One who makes and puts in circulation a negotiable note, bearing date on a secular day, is estopped, as against an innocent holder, from showing that it was executed on Sunday. Id.
13. After accepting and paying a bill, the drawee cannot recover back the amount of it from the payee on the ground that he had paid it under a mis- take as to the reliability of the drawer's security, which had proved to be fictitious. National Bank v. Burkham, 184.
14. Where the makers of a promissory note are sued jointly, the defence of illegal interest by one of the defendants inures to the benefit of all. Mil- ler v. Longacre, 679.
15. One who takes a negotiable note before maturity, at its full value, in payment of a pre-existing debt, in good faith, and without notice of anything that would invalidate it in the hands of the payee, is a bonâ fide holder for value. Russell v. Splater, 53.
16. Where the payee takes up a promissory note after its negotiation by him, the ownership, both legal and equitable, will return to him, and he may maintain an action thereon in his own name. Palmer v. Gardiner, 497. III. Endorsement, Acceptance, &c.
17. Adams, a partner of Moorehead & Co., drew a note in favor of Whit- ten & Co., of whom also he was a member, and, after it was endorsed by the payees, endorsed the name of Moorehead & Co.; the note was sold to the plaintiff by a known bill-broker. Held, that these circumstances were not notice to the plaintiff that the endorsement was without authority. Moore- head v. Gilmore, 52.
18. Each partner has the same right to raise money for the use of the firm by endorsement of negotiable paper as to do so by means of paper already issued, and the public is not affected by the private restriction on the power of each partner. Id.
19. Where the holder of a time-draft, with accompanying bills of lading, sends them to an agent with no special instructions to hold the bills of lading, the agent is authorized to surrender the bills to the drawee on the latter's ac- ceptance of the drafts. National Bank of Commerce v. Merchants' National Bank, 102.
20. It does not make any difference that the drafts are sent to the agent
BILLS AND NOTES. "for collection." That instruction merely rebuts the inference of the agent's ownership of the draft. National Bank of Commerce v. Merchants' National Bunk, 102.
21. Bills of lading, though transferable by endorsement, are only quasi negotiable; and the endorsee does not acquire the right to change the agree- ment between the shipper and his vendee. Id.
22. A bill of exchange may be accepted by parol. Scudder v. Union Na- tional Bank, 619.
23. A partnership firm becoming owners of a note made by one of the firm cannot recover at law upon it, but may in equity. Hall v. Kimball, 498.
Where, in a deed, the middle of a stream is called for as the boundary line between adjacent proprietors, it will control the courses and distances named in the conveyance. Niehanz v. Shepherd, 502.
1. Earns his commission when he finds a purchaser at the proper terms, though the sale fails to be made an account of the owner's action. Lane v. Albright, 53.
2. When a real estate broker, employed to sell a farm, disposes of it by way of exchange for other real estate, he is not entitled to charge the owner of the latter a commission. The law does not permit the broker in such a case to act as agent for both parties. Even an agreement to pay such commission could not be enforced by an action thereon. Raisin v. Clarke, 61.
3. Nor could an action be maintained by proof of a custom or usage. Id. And see AGENT, 3; CONTRACT, 22.
4. Plaintiffs were bankers and paid their tax as such. They also bought and sold gold and stocks for others, and on their own account. An addi- tional tax upon them, as brokers, for all their sales of this kind, as well those on their own account as those for others was proper. Warren v. Shook, 549.
CAPTURED AND ABANDONED PROPERTY. See LANDLORD AND TEN- ANT, 1.
A factor is not an owner of property within the meaning of the Abandoned and Captured Property Act, at least not beyond the extent of his lien. United States v. Villalonga, 376.
1. The holder of a bank check is bound to present it within a reasonable time; otherwise the delay is at his own peril. Woodruff v. Plant, 145.
2. But what is a reasonable time must depend upon the particular circum- stances of the case. And the time may be extended by the assent of the drawer, express or implied. Id.
3. The plaintiff, desiring to make a remittance to a creditor at a distance, and there being no bank in the place where he lived, asked the defendant, who had an account with a banker in a neighboring city, to take the amount of him in bank bills and give him his check therefor, and the defendant, fully understanding the object, took the bank bills and gave the plaintiff his check upon the banker, payable to the plaintiff's order, the defendant the same day depositing the bills with the banker. The plaintiff at once endorsed the check to his creditor and sent it by the next mail. It was three days before the check reached the place where the banker resided and was presented for payment, at which time the banker had failed and payment was refused. The plaintiff having taken up the check sued the defendant thereon. Held, that the check was presented within a seasonable time in the circumstances, and that the defendant was liable. Id.
4. It is the duty of a bank to whom a check is sent for collection to pre-
sent it and demand payment within the time prescribed by law, and if not paid notify the proper parties of its dishonor. Essex County Nat. Bank v. Bank of Montreal, 418.
5. A bank upon whom a check is drawn is liable, before acceptance, only to the drawer; it cannot be made liable to the holder except by its own con- sent. Id.
6. If a bank to whom a check is sent for collection, instead of demanding immediate payment, accepts a certification of it, that will create such a new relation between the parties as to discharge the drawer, and will render the bank accepting the certification in lieu of payment, liable for any loss arising to the holder from the failure of the bank upon which the check was drawn. Id.
7. The party to whom the check is endorsed for collection is the proper plaintiff, and an amendment, under the practice in Illinois, is allowable at the trial, substituting such party as plaintiff. Id.
CHURCH. See PUBLIC SCHOOLS; TAXATION, 4.
1. It appeared that the land on which the Catholic church and parsonage in Portsmouth stands, was vested in the defendant, Bacon, bishop of the dio- cese, no trust being declared in writing: Held, that no special trust could be proved by parol. Hennessey et al. v. Walsh et al., 264,
2. It appearing that the funds with which said land was bought had been furnished for that purpose by subscriptions and contributions made to the priest in charge for the time being, under the law, usage and polity of the Roman Catholic church, by Catholics and others resident in Portsmouth and elsewhere: Held, that no trust resulted to the society or congregation wor- shipping in said church. Id.
3. The defendants having stated in their answer that by the law, usage and polity of the Roman Catholic church, the title to all lands used for religious purposes, churches, &c., is vested in the bishop of the diocese in which the same are situated, for the use and benefit of the universal Catholic church, and that these contributions were made under that rule, and it having been found by the court that the legal title to the property was vested in the de- fendant, the bishop, without any written declaration of trust, and that he was accountable only to his ecclesiastical superiors: Held, that the said defendant was not accountable to the congregation for his management of the property; that a court had no authority to take this property from the bishop and place it in the hands of a new trustee. Id.
4. The interference of civil courts in ecclesiastical controversies discussed. Note to Id., 276.
5. A legislative act of a synod which forfeits the franchises and property of a congregation, is in the nature of a judicial sentence and inoperative; it is ultra vires. McAuley and others' Appeal, 118.
COLLATERAL SECURITY. See DEBTOR AND CREDITOR, 6, 7; EQUITY, 15. COLLISION. See ADMIRALTY, I.
COMMON CARRIER. See RAILROAD.
1. A bailee of goods, sending them by a carrier, may sue the carrier for the delivery of the same to the consignee without payment, where payment was imposed as a condition of delivery. Murray v. Warner, 119.
2. Is liable, notwithstanding a stipulation against liability in the bill of lading, if injury was caused by his negligence. Welch v. Railroad Co., 140. 3. A stipulation by a bailee for hire for exemption from the consequences of his own negligence, has no validity, but there may be a valid stipulation for a degree of responsibility less than that imposed by law. Id.
4. Where a stipulation in such a case was open to a question as to whether it intended an exemption from all liability or only a limitation of the common- law liability, and the judge charged the jury that it was void, but that the defendants would be liable only for want of ordinary care, it was held that the defendants were not injured by the charge of the judge; that the stipula- tion was void, even if it were not so, since he held them only to the degree VOL XXIV.-95
of liability to which they would have been held under any construction on it. Murray v. Warner, 119.
5. It is well settled that common carriers may, by contract or by notice, restrict their common-law liabilities as insurers against purely accidental loss or injury. But they cannot, even by express contract, avoid liability for negligence, nor limit it to gross negligence. Virginia & Tennessee Railroad Co. v. Sayers, 297.
6. In an action against a railroad company for loss by negligence, the declarations of a brakeman or a section master not near enough to the time and place of the accident to be parts of the res gestæ, are not evidence. The rule as to declarations of agents is the same for corporations as for individuals. Id.
7. Common carriers may by special contract limit their liability as recog- nised by the common law, where there seems to be reason and justice to sus- tain their exemption. But where such is the case it ought to be by clear and distinct terms. McCoy v. Erie & Western Transportation Co., 439.
8. Where goods have reached their destination and the consignee is not ready to receive them, and the carrier puts them in store, or in charge of careful servants, the carrier's liability as insurer ceases, and he will thereafter be liable only as warehouseman. Rothschild v. Michigan Central Railroad Co.,
1. When an executor was forced to receive Confederate money contrary to his wishes, it was held that he was not accountable for it. Rockhold v. Rock- hold, 743.
2. The Supreme Court of the United States has no jurisdiction over such a Id.
3. Property purchased by the Confederate States during the war passed to the United States at the restoration of peace by capture. Whitfield v. United States, 679.
4. Contracts of sale made in aid of the rebellion will not be enforced by the courts, but completed sales occupy a different position. As a general rule, the law leaves the parties to illegal contracts where it finds them, and affords relief to neither.
5. Payment in Confederate notes is no payment. Fretz v. Stover, 119. CONFISCATION.
1. Under the Act of Congress of July 17th 1862, for the confiscation of enemy's property, a seizure and sale of land in which the owner, a participant in the rebellion, had an equity of redemption, passed his whole title and left no estate in him which he could subsequently convey. Wallach v. Van Ris- wick, 329.
2. Nor does the joint resolution of Congress of the same date, limiting the forfeiture to the offender's life, change the effect of the act. What is for- feited is not a technical life-estate, but the entire estate during a limited period. Id.
3. The property of W. was mortgaged by him to R. and subsequently was confiscated and sold by the United States in 1863, under the Act of July 17th 1862, R. becoming the purchaser. In 1866, W. and wife made a deed of the property in fee simple to R., with covenants of general warranty. In 1872, W. having died, his heirs filed a bill against R., to redeem as against the mortgage, and to have the deed of W. in 1866 declared void: Held, that the bill would lie. Id.
See CONSTITUTIONAL LAW, 12; CONTRACT, 3, 4: DEBTOR AND Creditor, 1; FERRY; FOREIGN JUDGMENT; INSURANCE, 5; INTOXICATING LIQUORS, 4.
1. The full faith and credit required to be given to records of judicial pro- ceedings in another state, means that such records shall have the same effect as records of home proceedings of like nature. McArthur v. Goddin, 672. 2. In actions of such records, the Statute of Limitations of the state where
the actions are brought must govern. That statute is a plea to the remedy and therefore to be governed by the lex jori. McArthur v. Godin, 672.
3. The statute of Kentucky bars any further proceeding on a judgment after fifteen years from the last execution thereon. An action in Kentucky cannot be maintained on an Ohio judgment upon which no execution had issued for more than fifteen years. Nor does it make any difference that within fifteen years the Ohio judgment has been revived in that state. Id.
4. A judgment for alimony rendered in another state, where the only notice to the defendant was by publication, and he did not appear, and the record does not show that he was a resident of that state, can have no force in Indiana. Middleworth et ux. v. McDowell, 54.
5. The laws of a foreign state operate beyond its territorial limits only ex comitate. The courts of a state where the laws cf such foreign state are sought to be enforced, will use a sound discretion as to the extent and mode of that comity. Rice v. Merrimack Hosiery Co., 608.
6. A creditor of a corporation, created under the laws of Ohio, filed a bill in New Hampshire to enforce the individual liability of the stockholders of the corporation. The corporation had no assets in New Hampshire, and none of its stockholders resided there. Held, that comity does not require the courts to give effect to the statutes of Ohio. Id.
7. The act of a state legislature declaring that A. was thereby constituted a legal heir of B. confers no capacity upon A. to acquire property beyond the state passing the act. Barnum v. Barnum, 379.
8. A citizen of the state of Ohio may be enjoined from prosecuting an attachment in another state against a citizen of that state, to subject to the payment of his claim the earnings of the debtor, which, by the laws of that state, are exempt from being applied to the payment of such claim. v. Snitzer, 122.
CONSTITUTIONAL LAW.
I. Powers of Congress. See post, 19, 20, 21, 28, 33–37.
1. In the United States the powers of government may be divided into four classes: those which belong exclusively to the states; those which belong exclusively to the national government; those which may be exercised con- currently and independently by both; and those which may be exercised by the states, but only with the consent, express or implied, of Congress. Nat. Bank v. Dearing, 621.
2. Rights and immunities created by or dependent upon the Constitution of the United States, can be protected by Congress, in such form and manner as Congress, in the legitimate exercise of its legislative discretion, shall pro- vide. United States v. Reese, 550.
3. If Congress has not declared an act done within a state to be a crime against the United States, the courts have no power to treat it as such. Id.
4. The fifteenth amendment to the Constitution of the United States has invested the citizens with a new constitutional right which is within the pro- tecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise, on account of race, color or previous condition of servitude. Id.
5. The Act of May 31st 1870, commonly called the Enforcement Act, is not in pursuance of this amendment, and Congress has not as yet provided by appropriate legislation for the punishment of a violation of the provisions of this amendment. Id.
6. The first amendment of the Constitution, which prohibits Congress from abridging "the right of the people to assemble and to petition the govern- ment for a redress of grievances," was not intended to limit the powers of the state governments, but to operate on the national government alone. United States v. Cruikshank, 551.
7. This right was not created by the amendment; its continuance was only guaranteed as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the states. Id.
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