THE AMERICAN LAW TIMES. NEW SERIES.-SEPTEMBER, 1874.- VOL. I., No. 9. DIGEST OF CASES PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERI Albany L. J...... Am. Law Rec. Am. Law Reg.. Cent. L. J...... Chicago L. N...... Daily Reg. Ins. L. J.... Int. Rev. Rec..... Leg. Chron.... Leg. Gazette... Leg. Int..... Mo. West. Jur... Pac. Law Rep...... ODICALS. ABBREVIATIONS. ..Albany Law Journal, Albany, N. Y., · American Law Register, Philadelphia, Pa., Central Law Journal, St. Louis, Mo., SOULE, THOMAS & WENTWORTH. · Chicago Legal News, Chicago, Ill., CHICAGO LEGAL NEWS Co. ..Daily Register, New York, 303 BROADWAY, N. Y. ... SOL. FOSTER, JR. .Legal Gazette, Philadelphia, Pa., KING & BAIRD. ·Pittsburg Legal Journal, Pittsburg, Pa., MILLS & Co. ADMISSIONS OF COUNSEL. 1. SPECIAL DEPOSIT. PREFERENCE. - A, a banker, having in his custody certain government bonds on special deposit as the property of B, used a portion of them, substituting in lieu of such as he used a note and mortgage equal in amount thereto. Shortly after the substitution B was informed of the same and signified his acquiescence by directing his attorneys to foreclose the mortgage and otherwise. Vol. I.] DIGEST OF CASES. [No. 9. A having been adjudged a bankrupt, a bill was filed by the assignees to set aside the "transfer," of the note and mortgage. Held, that B having ratified the substitution, the note and mortgage became his property as much as the bonds would have been had no substitution taken place; that there was no preference in the sense of the bankruptcy act, and that the assignees could not reach the note and mortgage. Cook v. Tullis, Leg. Gazette, July 10, 1874. 2. THE ESTATE TAKEN BY AN ASSIGNEE OR TRUSTEE is the estate of the bankrupt no more and no less. And it is subject to all legal and equitable claims in their hands, and all the equities hold good against them which might have been urged against the bankrupt had there been no assignment. 16. COMMON CARRIER. NOT LIABLE BEYOND ITS OWN ROUTE. · A common carrier is not liable for the loss of goods, where such loss occurs beyond the terminus of its own route, even if the goods are received and marked for a point upon another route. Berg v. Narragansett Steamship Co., N. Y. Court of Common Pleas, Daily Reg., July 23, 1874. CONSTITUTIONAL LAW. 1. GENERAL AND SPECIAL LAWS. CORPORATION. -A state constitution provided that "corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes. All general laws and special acts passed pursuant to this section may be altered from time to time, or repealed." The legislature passed an act conferring certain privileges upon a corporation, which concluded as follows: "This act shall not take effect unless the parties named in section one shall, within sixty days after its passage, duly organize themselves in conformity with the existing laws regulating corporations now in force in this State." Held, that the act was an infraction of the provision quoted. San Francisco v. Spring Valley Water Co., Pac. Law Rep., July 7, 1874. 2. THE ILLINOIS "GRAB LAW." - ACT OF APRIL 16, 1869, UNCONSTITUTIONAL. — Held, that the act of April 16, 1869, of Illinois, entitled "An act to fund and provide for paying the railway debts of counties, townships, cities, and towns" is unconstitutional, because it provides for the imposition of a higher rate of taxation for state purposes on taxable property, in counties which have no outstanding indebtedness incurred in aid of the construction of railways, than is imposed on taxable property in counties which have such indebtedness. Ramsey v. Hoeger, Cent. L. J., July 2, 1874; Mo. West. Jur., July, 1874. See PATENT; USURY. CONTRACTS. RESTRAINT OF TRADE.—A steamship company engaged in the business of transportation on the rivers, bays, and waters of California sold one of their steamers to another company which was engaged in a similar business on the Columbia and its tributaries in Oregon, provided the latter company would agree that the steamer should not be used in the Vol. I.] DIGEST OF CASES. [No. 9. California waters for ten years from the year 1864. Three years afterwards the Oregon company sold the same steamer to the defendants, who were engaged in the business of transportation upon Puget Sound in Washington Territory, provided that the latter would agree that the steamer should neither be employed upon the rivers, bays, and waters of California nor on the Columbia River or its tributaries for ten years from the year 1867. Held, that under the accepted rule, that contracts in restraint of trade are divisible, the agreement last named could be divided without confusion or uncertainty, and the extra period of three years in reference to the California waters separated from that which was necessary to the protection of the Oregon company. That the contract first mentioned was unobjectionable. Supreme Court U. S. Opinion by BRADLEY J., CLIFFORD, SWAYNE, and DAVIS, JJ., dissenting. Oregon Steam Nav. Co. v. Winsor, Cent. L. J., July 16, 1874; Albany L. J., July 18, 1874. See PLEADING AND PRACTICE, 5. CORPORATION. See CONSTITUTIONAL LAW, 1; MUNICIPAL CORPORATION. CRIMINAL LAW. CONFESSION. It is not error to submit an alleged confession to the jury on the evidence to say whether any improper influence was used, nor in charging that, if there was improper influence, the confession should be disregarded. Disclosures drawn from a prisoner may be deductions of specific facts rather than confessions; and while such admissions are to be strictly guarded against improper influence, they are a lower order of evidence than actual confessions of guilt. A prisoner may admit a damaging fact without any intention of confessing his guilt. Brown v. Commonwealth, Leg. Chron., July 18, 1874. See EVIDENCE, 3. CUSTOM. See PLEADING AND PRACTICE, 5. DAMAGES. FOR INJURY BY NEGLIGENCE OF RAILROAD. The court below charged the jury as follows: "If the plaintiff, at the time of the injury, was engaged in a legitimate business, from which pecuniary profits had arisen and future profits might be reasonably expected, which business was interrupted or suspended in consequence of disabilities, physical or mental, inflicted by the negligence of the defendant, the loss of such anticipated profits is properly the subject of compensation in damages." Held, that there was no error. The damages in cases like the present are to be arrived at by considering the reduction which has been wrought upon plaintiff's earning powers whether mental or physical, or both combined, and in order to do this properly reference must be had to the business in which he was engaged at the time of the accident. The Vol. I.] DIGEST OF CASES. [No. 9. amount is a matter for the jury to determine from all the facts presented for their consideration. Penna. R. R. Co. v. Dale, Leg. Gazette, July 3, 1874; Leg. Chron. July 11, 1874. EMINENT DOMAIN. POWER OF MUNICIPAL CORPORATION IN RESPECT OF. The legislature is the sole judge of the necessity or expediency of exercising the right of eminent domain, and where it delegates the right to exercise the power, it delegates, also, the discretion as to when and under what circumstances such right shall be made use of. Hence, where the right to take private property for public purposes has been delegated to a municipal corporation, the corporation may determine as to the expediency of the taking, and if there be no other question, the courts are without any authority in the premises. There is, under such circumstances, no judicial question involved. Chicago, R. I. & P. R. R. Co. v. Town of Lake, Chicago L. N., July 4, 1874. ENFORCEMENT ACT. AS TO REMOVAL OF CAUSES. The provisions of the act of April 20, 1871, known as the "Enforcement Act," do not warrant the removal of cases from a state to a United States court. cases originally commenced in a federal court. Co., Cent. L. J., July, 9, 1874. EQUITY JURISDICTION. Said act relates only to See JURISDICTION; PLEADING AND PRACTICE, 5; TRADE NAME. EVIDENCE. 1. PHOTOGRAPH AS EVIDENCE TO IDENTIFY PARTY. A photograph may be introduced in evidence to identify a person. The process of producing photographs has come to be so generally understood and recognized as a means of taking correct likenesses that a court will not refuse to take judicial cognizance thereof. Udderzook v. The Commonwealth, Leg. Int., July 10, 1874. 2. THE HABITS OF A PERSON may be shown for purposes of identification. Thus the habit of intoxication may be proved and is entitled to such weight as the jury may give it. Ib. 3. WHERE TWO PERSONS ARE MURDERED at the same time and place, and under circumstances evidencing that both acts were committed by the same person or persons, and were part of one and the same transaction or res gesta, and tends to throw light on the motive and manner of the murder for which the prisoner is indicted, the death of the one and surrounding circumstances may be given in evidence upon the trial of a prisoner for the murder of the other, not as an independent crime, but as tending to show that the motive was one and the same that led to the two crimes at the same time. As part of the same res gesta they explain each other. Brown v. Commonwealth, Leg. Chron., July 18, 1874. 4. TERMS OF ACCEPTANCE OF OFFER TO SELL Evidence to show the terms of acceptance of an offer to sell real estate is competent. Clendenon v. Pancoast, Leg. Gazette, July 3, 1874; Leg. Chron., July 11, 1874. [No. 9. 5. ADMISSION OF COUNSEL AT FORMER TRIAL. On the trial of a case it became necessary to prove the incorporation of the defendants, their existence, and that certain persons were officers of the corporation at a time specified in the declaration. To prove these facts the plaintiff offered evidence that, at a former trial, the defendants' counsel admitted them to be true. To the admission of this testimony the defendants objected, and offered proof that said facts were admitted for the purposes of the former trial, and that the plaintiff previously to the present trial had notice that the same would not again be admitted, but would be denied. Held, that the evidence was competent. Admissions by a party either in or out of court may be proved, but it does not follow that such party is estopped from denying them. Perry v. Waterproof Man. Co., Am. Law Reg., July, 1874. See CRIMINAL LAW. JUDGMENT NOTE. See LIMITATIONS. JURISDICTION. OF U. S. COURTS TO COMPEL PAYMENT OF MUNICIPAL BONDS. EQUITY JURISDICTION. MANDAMUS. —A suit in equity was brought in a United States court by certain holders of bonds issued by what is called the Board of Levee Commissioners of the levee district for the parishes of C. and M. of the State of Louisiana. The board thus described was made a quasi corporation by the legislature of the State, with authority to issue the bonds and provide for the payment of interest and principal by taxes levied on the real and personal property within the district. The bill alleged a failure to levy these taxes and to pay the interest on any part of said bonds; that the persons duly appointed levy commissioners had resigned or pretended to do so for the purpose of evading this duty, and that they had applied to the judge of the district court, who was by statute authorized to levy a tax on the alluvial lands to pay the bonds if the levee commissioners failed to do so. The prayer for relief was that the levee commissioners be required to assess and collect the tax necessary to pay the bonds and interest, and, if after reasonable time they should fail to do so, that the district judge be compelled to do the same, and for such other relief as the case required. No judgment at law had been recovered on the bonds or any of them, nor had any attempt been made to collect the money due by proceedings in a common law court. Upon the above facts the bill was dismissed by the circuit court. Upon appeal to the supreme court, held, that it has been decided in numerous cases, founded on the failure to pay corporation or municipal bonds, that the appropriate proceeding is to sue at law, and by a judgment of the court establish the validity of the claim and the amount due, and by the return of an ordinary execution ascertain that no property of the corporation can be found liable to such execution and sufficient to satisfy the judgment. Then, if the corporation has authority to levy and collect taxes for the payment of the debt, a mandamus will issue to com |