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Vol. I.)

Digest Of Cases.

[No. 8.


RATE OF INTEREST UPON FOREIGN JUDGMENT. - If there be no evidence of the rate of interest allowed upon a foreign judgment, the rate prescribed by the law of the state where the case is tried will be adopted. Crafts v. Clark, West. Jur., June, 1874.



GOVERNMENT MUST MAKE OUT PRIMA FACIE CASE. Where defendants, in an action under the Internal Revenue Laws, failed to produce certain books which would, presumably, have disclosed that prima facie case against them was susceptible of explanation, the court below instructed the jury as follows: "The proof in the outset may be defective. It may not be sufficient to enable you, without any doubt or hesitation, to find against the defendants, and still it may be your duty, nevertheless, so to find; for although I instruct you that the case must be made out beyond all reasonable doubt in this, as well as in criminal cases, yet the course of the defendants may have supplied, in the presumptions of law, all which this stringent rule demands. In determining, therefore, in the outset, whether a case is established by the government, you will dismiss from your minds the perplexing question, whether it is so made out beyond all doubt. It needs not, in the exigencies of this case, be so proved in order to throw the burden of explanation upon the defendant, if from the facts you believe he has within his reach that power. In the end, all reasonable doubt must be removed ; but here, at this stage, you need say only, ' Is the case so far established as to call for explanation ?'” i.. Held, that there was error; that the government was required to make out its case beyond a reasonable doubt. Chaffee f Co. v. U. S., Leg. Gazette, June 26, 1874.

See TAXATION, 1, 3.




1. PRESUMPTIONS AS To, discussed in respect of judgments, recitals of the record, &c., by Mr. Justice Field, delivering the opinion of the supreme court of the United States. Calpin v. Page, Chicago L. N., June 13, 1874.

2. OF UNITED STATES COURT TO ISSUE MANDAMUS UNDER ACT OF MARCH 3, 1873, TOUCHING PACIFIC R. R. Co. The act of March 3, 1873 (17 Stats. at Large, 509), give to the proper circuit court jurisdiction in mandamus to compel the Union Pacific Railroad Company to operate its road as required by law. There must be jurisdiction over the company by service upon it to enable the court to exercise the power conferred by the act.

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Whether the circuit court for the district of Iowa can acquire jurisdiction over the company under this act, quære?

Private persons who suffer damage and inconvenience from the failure of the company to operate its road as required by law, may institute proceedings under the act of March 3, 1873, supra, without the sanction of the attorney general.

Cases in which the attorney general must, and in which private citizens may apply for the writ considered. Hall v. U. P. R. R. Co., Chicago L. N., June 13, 1874; Cent. L. J., June 11, 1874.


See INSURANCE, 5, 7, 8, 9.

LOUISIANA. THE PROVISIONAL COURT OF LOUISIANA, established by the President on the 20th of October, 1862, was in the rightful exercise of its jurisdiction on the 3d of June, 1865. The said court was dissolved on the 28th of July, 1866. Burke v. Tregre, Chicago, L. N., June 20, 1873.

MANDAMUS. THE GOVERNOR OF A STATE cannot be compelled by mandamus to perform an official act, even if the act is a duty imposed by statute and private rights are affected. Cooley, J., People v. "Bagley, Cent. L. J., June 18, 1874.



MISTAKE. WHEN EQUITY WILL CORRECT.— The mistake which will warrant a court of equity to reform a contract in writing must be one made by both parties to the agreement, so that the intentions of neither are expressed in it; or it must be the mistake of one party, by which his intentions have failed of correct expression, and there must be fraud in the other party in taking advantage of that mistake, and obtaining a contract with the knowledge that the one dealing with him is in error in regard to what are its terms. Bryce v. Lorillard Fire Ins. Co., Ins. L. J., June, 1874.

MORTGAGE. A paper recited that A held certain land by agreement; that B agreed to advance to A two sums of $500 and $600 to pay the purchase money due C and D from A, and that A agreed that the title of the land should be transferred to B, and held by him, until A paid the $1,100 to B, and that B should thereupon convey the land to A. Held, that the paper was a mortgage. May v. Fepler, Leg. Gazette, June 19, 1874.

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1. STREET RAILWAY. — INJURY TO BOY FROM JUMPING FROM CAR.It appearing that a street railway company permitted the front door of its car, upon which the plaintiff, a boy ten years of age, was being carried, to remain open, and the passage-way and rear platform to be crowded, while no fender was provided for the front platform, and that plaintiff was injured by jumping from the front platform while the car was in motion, the court refused to charge that, as a matter of law, there was no negligence on the part of the company, or that there was contributory negligence on the part of the plaintiff, but left both questions to the jury. Held, not to be error.

Phila. City Páss. R. W. Co. v. Hassard, Leg. Int. June 19, 1874 ; Leg. Gazette, June 12, 1874.

2. VIS MAJOR. - Where defendant's horses became frightened by a locomotive, while defendant was driving upon a highway, and by reason of such fright became unmanageable and ran against and broke a post upon plaintiff's land, and it appeared that defendant had exercised reasonable care and skill in driving prior to the horses becoming frightened, and had not subsequently been guilty of negligence, it was held that defendant could not be held for the injury. Brown v. Collins, Am. Law Reg., June, 1874.



AN ILLEGAL TRAFFIC IN INTOXICATING LIQUORS may be rightly regarded as a nuisance which the legislature of a state has power to direct the abatemant of as such. Streator v. The People, Mo. West. Jur., June, 1874.



PLEADING AND PRACTICE. THE ACTION OF DEBT FOR STATUTORY PENALTY DEFINED AND DISTINGUISHED.—The action of debt lies for a statutory penalty because the sum demanded is certain, and is, in fact, founded upon a tort. The necessity of establishing a joint liability in such cases does not exist; it is enough if the liabilities of any of the defendants are shown. Judgment may be entered against them and in favor of the others, whose complicity in the offence for which the penalty is prescribed is not proved, as if the action were in form as well as in substance ex delicto. Chaffee of Co. v. U. S., Leg. Gazette, June 26, 1874.


Vol. I.)

Digest of Cases.

[No. 8.

PUBLIC SALE. OF UNOPENED PACKAGES BY EXPRESS COMPANY. — A sale of packages without opening them so that the contents can be seen is not à lawful sale within the meaning of the statute which provides that the property shall be exposed." Adams Express Co. v Schlessinger, Leg. Gazette, June 12, 1874.




STATE DECISIONS. HOW FAR U. S. COURTS WILL BE BOUND BY. - Whether or not a married woman has power to mortgage her separate estate to secure a debt of her husband, is a question in the determination of which a federal court will be bound by the constructions of a state court, the question depending upon the construction of a state statute. Mitchell v. Lippincott $ Co., Cent. L. J., May 28, 1874.


STATE SOVEREIGNTY. TREATY STIPULATIONS. RIGHT OF STATE OVER ITS OWN TERRITORY. — A treaty with a tribe of Indians living in Minnesota, made after the admission of the State to the Union, contained a stipulation in the following words :

“ The laws of the United States now in force, or that may hereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country, shall be in full force and effect throughout the country hereby ceded, until otherwise directed by Congress or the President of the United States."

Certain spirituous liquors, illegally introduced into the territory covered by the stipulation, were seized in pursuance of law and duly libelled. The court held, sustaining a demurrer, that the territory where the liquors were seized being an organized county in the State of Minnesota, without the consent of said State the stipulations of the treaty cited were inoperative to the extent of demanding the forfeiture. U. S. v. Forty-three Gallons of Whiskey, fc., Int. Rev. Rec., May 18, 1874.

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TAXATION. 1. INTERNAL REVENUE. CONSTRUCTION OF ACT OF JUNE 30, 1864, AS TO WHOLESALE DEALERS. Where a manufacturer sells by sample at an agency he is not liable to be taxed as a wholesale dealer, as provided in section 79 of the act of June 30, 1864, and the amendatory act of July 13, 1866. Tucker v. Slack, Int. Rev. Rec., May 11, 1874.

2. TAX UPON CORPORATION. - REGULATION OF COMMERCE. Held, that a state statute that imposed a tax upon the earnings of a railroad

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company, with a proviso that where the railroad lay partly in and partly out of the state, the tax should be proportioned accordingly, was not unconstitutional as being a regulation of commerce or otherwise, but was merely a tax upon the corporation. Minot v. P.W.B. R. R., Chicago L. N., May 16, 1874.

3. TAXES WERE ASSESSED UPON DIVIDENDS declared by an insurance company on earnings which had accrued to the company between July 5, 1869, and June 30, 1870. Held, that the tax was valid. Stockdale v. Atiantic Ins. Co., Albany, L. J., June 13, 1874; Int. Rev. Rec., June 1, 1874.




SALE OF INTOXICATING LIQUORS. POWER OF MUNICIPAL CORPORATION. - A provision in the charter of a city authorized the common council to declare the selling, giving away, or keeping for sale of spirituous or intoxicating liquors in the city a nuisance.

An ordinance was passed which authorized a police magistrate, upon complaint that any person had liquor for sale to the amount

of more than one gallon, to issue his warrant for the search of the person's dwelling, &c. Held, that the ordinance was ultra vires and void. Sullivan v. Čity of Oneida, Mo. West. Jur. June, 1874.


LIABILITY OF THE UNITED STATES FOR FORGED OR FRAUDULENT BONDS CONSIDERED. — Under the act of Congress of April 12th, 1866, which authorized the secretary of the treasury to dispose of bonds, “ the proceeds thereof to be used for retiring treasury notes, or other obligations issued under any act of Congress, but nothing herein contained shall be construed to authorize any increase of the public debt," the assistant treasurer at New York having purchased, for retiring, certain 7-30 treasury notes, not yet due, which, being sent to Washington, were returned as forged and counterfeit and not issued by the United States, suit was brought by the government to recover back the money paid for the notes. Evidence was given on the trial, insisted on by the defendants, as tending to show that the notes were printed from the genuine plates and sealed with the genuine seal of the treasury department. Held, if the notes were in fact wholly forged and counterfeit the assistant treasurer had no authority to purchase them, and the plaintiffs were entitled to recover.

The government is not estopped, by the purchase and payment, from recovering back the money, not only because the government is not, in general, bound by the negligence of its officers, acting under a limited authority, but also because the defendants could, by refunding the money, be placed in the same situation, as they were before the transaction..

The case bears no just analogy to the acceptance or payment of a forged bill of exchange, by the drawee thereof, in which case the holder acts in faith of the drawee's acceptance or payment, and is disarmed of his usual

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